220 Or. 528 (1960)
349 P.2d 849
IN THE MATTER OF THE ESTATE OF HENRY DESBOROUGH, DECEASED
SCHULMERICH
v.
FIRST NATIONAL BANK OF PORTLAND ET AL
Supreme Court of Oregon.
Argued February 11, 1960.
Appeal dismissed and cause remanded March 2, 1960.
*529 Howard I. Bobbitt, Portland, argued the cause and filed briefs for appellant.
John E. Walker and Clarence D. Phillips, Portland, argued the cause and filed a brief for respondents.
*530 Before McALLISTER, Chief Justice, and LUSK, SLOAN and DUNCAN, Justices.
APPEAL DISMISSED AND CAUSE REMANDED.
DUNCAN, J. (Pro Tempore)
An appeal by plaintiff from an order of the Probate Department of the Circuit Court of the State of Oregon for Multnomah County denying his motion for an order permitting him to amend his petition contesting the will of Henry Desborough.
On May 7, 1957, the will of Henry Desborough was admitted to probate in said court and on May 8, 1957, the order admitting the will was entered in the journal.
On October 31, 1957, Viola E. Schulmerich, herein called the plaintiff, filed in said estate proceeding a petition to contest the will. Her petition was entitled "In The County Court of the State of Oregon for the County of Multnomah." (Emphasis supplied.)
On December 31, 1957, plaintiff filed a motion for leave to amend the caption of her petition to make it read "In The Circuit Court of the State of Oregon of the County of Multnomah, Department of Probate." (Emphasis supplied.)
On January 13, 1958, an order was entered denying plaintiff's motion to amend but on January 23, 1958, an order was entered vacating the order of January 13, because of certain recitals contained therein. Thereafter, on said January 23, there was entered the order appealed from, the substance of which reads:
"IT IS HEREBY ORDERED that the motion to amend the petition of the Contestant filed in the County Court of the State of Oregon for the County of Multnomah be and the same is hereby denied."
It further appears that on October 31, 1957, summons entitled "In the County Court of the State of *531 Oregon for Multnomah County" was placed in the hands of the sheriff of Multnomah County and on the same day served on defendants First National Bank and Salvation Army; that on November 12, 1957, said defendants appeared separately and specially seeking to quash service of summons and to dismiss the petition contesting the will. On January 3, 1958, after a hearing, the court entered an order that the service of summons on said defendants "be quashed and held for naught."
The contest proceedings were not dismissed.
Defendants contend that the order denying the motion to amend is not appealable. Under ORS 19.010(2) (a) if the same is "an order affecting a substantial right, and which in effect determines the action or suit so as to prevent a judgment or decree therein," it is reviewable on appeal.
Whether the order was appealable or not will be first considered.
1, 2. The general statutes of limitations, ch 12 of ORS are intended only to apply to common law rights of action. They do not affect a special statutory proceeding which sets up its own limitation as has the probate code pertaining to will contests. ORS 115.180; Burns v. White Swan Mining Co., 35 Or 305, 57 P 637; Nickerson v. Mecklem, 169 Or 270, 282, 126 P2d 1095; 2 Page on Wills (Lifetime ed) 137, § 604. Therefore, ORS 12.020 and 12.030 which provided that for the purpose of determining whether an action has been commenced within the time limited, it shall be deemed commenced when the complaint is filed and the summons served or delivered to the serving officer with the intent that it be actually served, do not govern the present proceeding.
*532 3. The contesting petition having been filed October 31, 1957, was within the time limited by ORS 115.180. ORS 16.370 provides that "Any pleading may be once amended by the party of course, without costs and without prejudice to the proceedings already had, at any time before the period for answering it shall expire; * * *."
4. The service of summons on defendants was quashed by order of the court. It does not appear that an alias or new summons or citation was issued. Consequently, at the time of entry of the order denying motion to amend, plaintiff had a right as of course without permission of the court to file an amended petition. As a result, the order of court denying plaintiff's motion did not determine the case and hence was not appealable.
5-7. On the question of whether or not it is permissible to amend the caption of a proceeding to state the correct name of the court, the general rule is that such an amendment is proper. Rosewater v. Horton, 4 Neb Unof 205, 93 NW 681; Kunnes v. Kogos, 168 La 682, 123 So 122, 65 ALR 706. This rule is in keeping with the purpose of ORS 16.390 which permits the court at any time before a case is submitted to correct a mistake in the name of a party "or a mistake in any other respect * * *." Also, it is the general rule that an amended pleading which introduces no new cause of action ordinarily relates back to the time of filing the original pleading. 71 CJS 713, Pleading § 320b.
8. Defendants question the jurisdiction of the Circuit Court because of plaintiff's mistake of entitling the petition and summons in the County Court instead of in the Circuit Court. It is doubted that the Circuit Court adopted that theory because it did not grant *533 defendants' motion to expunge plaintiff's petition from the probate record. From the ruling last above stated, that the mistake in the title of the court is amendable, it follows that the Circuit Court had jurisdiction of the cause from the time the petition to contest was filed, and we now so hold.
9. Whether service of the petition should be effected by summons or citation can be determined by the trial court pursuant to ORS 1.160 authorizing adoption of any suitable process or mode of proceedings.
When want of jurisdiction on appeal appears, it is the duty of the court to refuse to proceed further. McEwen et ux v. McEwen et al, 203 Or 460, 470, 280 P2d 402.
Plaintiff's appeal is dismissed and the case remanded to the trial court.


647 So.2d 440 (1994)
Margaret BROOKS, Plaintiff-Appellant,
v.
HENSON FASHION FLOORS, INC., et al., Defendant-Appellee.
No. 26378-CA.
Court of Appeal of Louisiana, Second Circuit.
December 7, 1994.
*441 Ronald J. Miciotto, Shreveport, for plaintiff-appellant.
Cook, Yancy, King & Galloway by Charles G. Tutt, Shreveport, for defendant-appellee.
Before MARVIN, BROWN and PRICE, pro tem., JJ.
BROWN, Judge.
Plaintiff, Margaret Brooks, an accounting manager for Mall St. Vincent, was injured when she slipped and fell in the hallway outside her office. The hallway was being widened by defendant, Henson Fashion Floors, Inc. Although the trial court's factual findings are clearly supported by the record, its conclusion that defendant's behavior did not constitute negligence is erroneous. We reverse and render.

FACTS
In February 1992, plaintiff worked in the management office of Mall St. Vincent in Shreveport, Louisiana. The hallway outside the office was being widened by defendant from three to seven feet to accommodate file cabinets and a copy machine. This hallway was not generally open to the public but was traversed regularly by office employees. In the process, one wall was removed, leaving the regular carpeted three-foot wide path and a bare concrete floor which was to be carpeted.
On February 25, 1992, Henson employees spread glue on the surface of the exposed concrete floor in preparation of laying carpet padding. A small number of office workers was informed by a Henson employee of the *442 operation and warned to stay clear of the glue; however, no other steps were taken to warn or protect pedestrians. Later in the morning, plaintiff, who had not been warned about the glue, left her office. She found the carpeted portion of the hallway blocked by tool boxes, tools, carpet pad scraps and a garbage can. Plaintiff stepped onto the concrete portion and slipped and fell in the freshly laid glue, injuring her left shoulder, elbow and knee.
Plaintiff filed suit against Henson and its insurer, State Farm Insurance Companies, alleging negligence. In its written opinion the trial court correctly set forth the issue as follows:
[T]he actions to be considered are the placement of tools and scraps in the carpeted portion of [the] hallway, and the application of glue to the adjacent concrete floor without placing warning signs or restricting the parameters of the area with tape. (emphasis added).

DISCUSSION
It is well settled that a court of appeal may not set aside the finding of fact of a trial court or a jury in the absence of "manifest error" or unless it is "clearly wrong". Rosell v. ESCO, 549 So.2d 840 (La. 1989); Clark v. Ark-La-Tex Auction, Inc., 593 So.2d 870 (La.App. 2d Cir.1992), writ denied, 596 So.2d 210 (La.1992). Duty questions, including whether a duty extends to protect a particular plaintiff against a particular harm, are essentially legal questions. Montgomery v. Max Foote Construction Company, 621 So.2d 90 (La.App. 2d Cir. 1993). Whether a duty is breached, however, is a question of fact. Mundy v. Department of Health and Human Resources, 620 So.2d 811 (La.1993). With these precepts in mind, we start by considering the trial court's findings concerning negligence.

Negligence of the Defendant
The trial court made five findings of fact regarding negligence on the part of Henson:
1) Mrs. Brooks was aware of the Henson employees' presence for several days prior to the accident, and knew they were at the office to install carpeting, therefore making hazards related to the work anticipated.
2) Henson employees had taken steps on the morning of the accident to admonish mall employees to be careful in the area.
3) According to the testimony of mall employees present on the morning of the accident, the glue was readily apparent and visible to anyone who looked.
4) Other employees had negotiated the hallway without difficulty prior to plaintiff's fall.
5) The decision to step around the scraps and onto the concrete floor was made by plaintiff with a total disregard for her pathway on to the concrete floor.
The trial court found these facts to be dispositive of the negligence issue and dismissed plaintiff's claim. For review purposes, we will employ a duty/risk analysis. Dixie Drive It Yourself System of New Orleans Co. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962). For liability based upon negligence to attach, plaintiff must prove the following: 1) the conduct in question was a cause-in-fact of the resultant harm; 2) the defendant owed a duty to the plaintiff; 3) the duty owed was breached; and 4) the harm caused was within the scope of the breached duty. Mundy, supra.
The cause-in-fact issue relates solely to an act or omission that results in harm or damage to another. This is a common sense inquiry into the logical consequences of conduct and not into the absurd extremes. Weaver v. Valley Electric Membership Corp., 615 So.2d 1375 (La.App. 2d Cir.1993). This cause-in-fact issue is confined to whether there is the requisite connection between plaintiff's particular injuries and defendant's particular conduct. Obviously, the blockage of the three-foot wide carpeted passageway, together with the failure of Henson's employees to warn plaintiff that they had applied adhesive to the concrete area was a cause-in-fact of plaintiff's injuries.
The next inquiry is whether defendant owed a duty to plaintiff. Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La. 1990). The application of a slippery substance to a concrete floor creates an obvious *443 risk. This risk is increased when the adjacent traveled area is blocked, requiring the pedestrian to step onto the slippery concrete floor. Clearly, there is an ease of association between a duty to warn pedestrians of precarious footing and the risk that those, like plaintiff, who have not been warned could fall and be injured. Henson thus owed a duty to plaintiff to warn of the hazardous floor condition created by its employees.
Generally, a party who owes a duty breaches that duty when he fails to exercise reasonable care in protecting those at risk. (emphasis added). What is reasonable care depends on the degree of the likelihood and seriousness of injury compared to the cost of prevention. Conway v. O'Brien, 111 F.2d 611 (2d. Cir.1940); Dobson v. Louisiana Power and Light Company, 567 So.2d 569 (La.1990), reh'g denied. In the instant case, the likelihood of injury was relatively high since it is commonly recognized that pedestrians are prone to fall when stepping in slippery substances on concrete floors. Furthermore, the injuries associated with slip and fall cases can be severe and debilitating.
In contrast, the cost of precautions would have been nominal. The trial court concluded that there were no warning devices, including caution signs and bright colored tape, at the accident site. A Henson employee stated that these devices were not utilized in an effort to keep open a passageway for mall employees. The Henson employee, however, also stated that a safety pylon could have been used without denying access through the hallway. Several witnesses testified to the absence of any warning devices around the work area. Such devices were cheap, readily available and both practical and effective. Henson employees had a duty to alert pedestrians of the hazard and breached that duty by not utilizing the simplest of warning devices.
Finally, we must consider whether the risk that someone might slip and fall was within the scope of the duty owed to the plaintiff by Henson. A risk is within the scope of a defendant's duty if the defendant could have reasonably anticipated harm arising in a particular manner. Socorro v. City of New Orleans, 579 So.2d 931 (La.1991). The rule of conduct relied upon by plaintiff was designed to protect against the exact risk to which plaintiff was exposed. Henson's employees could have reasonably anticipated that blockage of the carpeted portion of the passageway would cause a person to step onto the wet concrete floor and slip and fall. The risk of injury from a slip and fall was within the scope of the duty to warn pedestrians of the hazard created by the application of glue to an otherwise bare concrete floor.
Based upon the foregoing analysis, Henson's actions in leaving tools and scraps on the carpeted portion of the hallway, together with its failure to warn of the wet concrete floor, created an unreasonable risk. Under the circumstances, Henson had a duty to protect plaintiff from the risk of injuries associated with a slip and fall. Henson breached the duty it owed plaintiff and was therefore negligent. The trial court's factual findings, while relevant to the issue of comparative negligence, are not dispositive of the issue of negligence on the part of Henson. The trial court's holding was thus clearly wrong, warranting reversal.

Apportionment of Negligence
Upon a finding of negligence, LSA-C.C. Art. 2323 reduces the claim of plaintiff in proportion to her degree of fault. Soileau v. South Central Bell Telephone Co., 406 So.2d 182 (La.1981). In allocating comparative fault, this court must consider the nature of each party's conduct and the extent of the causal relationship between that conduct and the damages claimed. Ingram v. Caterpillar Machinery Corp., 535 So.2d 723 (La.1988), reh'g denied; Watson v. State Farm Fire and Casualty Ins. Co., 469 So.2d 967 (La. 1985), reh'g denied. Some of the factors which may influence the degree of fault to be assigned are: (1) whether the conduct resulted from inadvertence or involved an awareness of danger; (2) how great a risk was created by the conduct; (3) the significance of what was sought by the conduct; (4) the capacities of the actor, whether superior or inferior; and (5) any extenuating circumstances which might require the actor to proceed in haste without proper thought. *444 Watson, supra; Gray v. Louisiana Downs 585 So.2d 1238 (La.App. 2d Cir.1991).
Plaintiff testified that at the time of the accident, her attention was focused on the tool box, tools scraps and garbage can blocking the carpeted portion of the hallway and that she did not see the adhesive on the concrete floor. As noted by the trial court, other mall employees who traversed the hallway that morning managed to step over the obstacles without mishap. Witnesses also testified that the carpet adhesive was readily apparent and visible to those who looked. Plaintiff was aware of the presence of Henson employees and the ongoing renovation work and should have proceeded with more than usual caution. We conclude that plaintiff's inattention to where she stepped constitutes negligence. Plaintiff's conduct in stepping on the wet concrete, however, resulted from inadvertence rather than an awareness of danger. Plaintiff's substandard conduct posed no risk of harm to others. Henson's fault, on the other hand, created a risk of harm to every person who traveled the hallway. We conclude that plaintiff's fault was less than that of defendant and apportion the percentages of fault at 40% to plaintiff and 60% to defendant.

Damages
Following the accident, plaintiff complained of injuries to her shoulder, knee and elbow. Plaintiff made an immediate visit to a hospital emergency room where her condition was reported as follows: slight tenderness with motion in the left shoulder with no swelling or bruising; full range of motion in left elbow with minimal tenderness and no swelling or bruising; full range of motion in left knee with slight tenderness.
Plaintiff's pain persisted and increased. On September 24, 1992, she sought treatment for pain in her shoulder. The attending physician, Dr. Edwin Simonton, noted the restriction of all ranges of motion and diagnosed plaintiff's complaint as tendinitis. Dr. Simonton testified that the tendinitis could have been caused by the shoulder being jammed into the acromion process when plaintiff slipped and fell in the glue. Plaintiff again saw Dr. Simonton on August 30, 1993, complaining of pain and swelling in her left knee. The doctor noted that plaintiff had a full range of motion in the knee. However, there was swelling behind the knee and X-rays showed a slight lateral angulation of the patella.
Plaintiff, who was 65 years old and in good health at the time of the accident, testified 20 months after the accident that she continues to have pain in her knee daily and intermittent pain in her shoulder. She takes various medicines for pain and swelling and regularly applies a heating pad and ice packs to her knee. Plaintiff testified that she has modified her behavior since the accident. She has been forced to restrict her recreational activities such as gardening, traveling, shopping and going to movies because standing or sitting for long periods of time is uncomfortable. Plaintiff's ability to work has also been adversely affected. She cannot walk up stairs to get records or retrieve files from lower file cabinets and is unable to service the computer printer in her office.
In making an initial award of damages at the appellate level, we are not limited to either the highest or lowest amount which could be affirmed. Instead, based upon the record, we determine an award which would be just. Gray, supra. From our review of the record, we conclude that an award of $20,000, reduced by plaintiff's percentage of fault, will adequately compensate her for pain and suffering. Compare Starnes v. Caddo Parish School Board, 598 So.2d 472 (La.App. 2d Cir.1992); Dowe v. Grady, 540 So.2d 1040 (La.App. 2d Cir.1989); Walters v. Lewing, 519 So.2d 408 (La.App. 2d Cir.1988), reh'g denied; Johnmeyer v. Creel, 499 So.2d 571 (La.App. 2d Cir.1986); Hughes v. Querbes & Nelson, Inc., 460 So.2d 1161 (La.App. 2d Cir.1984), writ denied, 462 So.2d 1265 (La.1985).
Plaintiff presented medical bills totaling $1,164.00 as exhibits at trial and is entitled to this amount, reduced by her percentage of fault.

CONCLUSION
For the foregoing reasons, the judgment of the trial court is reversed and judgment is rendered as follows:
*445 IT IS HEREBY ORDERED that there be judgment in favor of Margaret Brooks against Henson Fashion Floors, Inc., and State Farm Insurance Companies in the amount of $21,164 reduced by plaintiff's percentage of fault, 40%, or $12,698.40, together with legal interest thereon from the date of judicial demand until paid.
IT IS FURTHER ORDERED that court costs at both the trial and appellate level be borne by defendants.
REVERSED AND RENDERED.


92 P.3d 862 (2004)
208 Ariz. 232
In the Matter of Thomas J. ZAWADA, Attorney No. 5815, Respondent.
No. SB-02-0103-D.
Supreme Court of Arizona, En Banc.
July 1, 2004.
*864 State Bar of Arizona, by John A. Furlong, Phoenix, Staff Bar Counsel.
Thomas J. Zawada, Respondent, Tucson, In Propria Persona.

OPINION
JONES, Chief Justice.
¶ 1 We granted sua sponte review of this disciplinary matter in order to determine whether the Disciplinary Commission's recommended sanctions of prosecuting attorney Thomas J. Zawada were adequate in light of the objectives of lawyer discipline. We hold they were not.

I. Facts and Procedural History
¶ 2 At all times relevant, Zawada was a prosecutor in the Pima County Attorney's Office. He prosecuted Alex Hughes in 1994 for various violent crimes, including first degree murder, all stemming from a shooting incident that resulted in the death of one person. Hughes' defenses consisted solely of insanity and self-defense. Throughout Hughes' trial, Zawada was fully aware that each of the six mental health experts who examined Hughes in relation to the crimes in question, including those retained by the state, found him to be mentally ill.
¶ 3 Notwithstanding the insanity plea, a jury found him guilty of first degree murder, attempted second degree murder, aggravated assault, disorderly conduct, and felony flight. On appeal, this court reversed Hughes' convictions, finding that "the cumulative effect of [Zawada's] misconduct deprived [Hughes] of a fair trial." State v. Hughes, 193 Ariz. 72, 74, ¶ 1, 969 P.2d 1184, 1186 (1998). On remand, the trial court dismissed all charges, holding that Article 2, Section 10, of the Arizona Constitution, the double jeopardy clause, forbade retrial. This court affirmed that holding after observing that double jeopardy bars retrial when there is "intentional prosecutorial misconduct aimed at preventing an acquittal." State v. Jorgenson, 198 Ariz. 390, 391, ¶¶ 3-4, 10 P.3d 1177, 1178 (2000) (citing Pool v. Superior Court, 139 Ariz. 98, 109, 677 P.2d 261, 272 (1984)).
¶ 4 Subsequent to this court's ruling in Hughes, a Bar complaint was filed against Zawada alleging prosecutorial misconduct in the handling of the case. The matter went to hearing, following which the hearing officer determined Zawada's acts of prosecutorial misconduct included (a) appeals to fear by the jury if Hughes was not convicted, (b) disrespect for and prejudice against mental health experts that led to harassment and insults during cross-examination, and (c) improper argument to the jury.
¶ 5 For example, during cross-examination of one of Hughes' mental health experts, Zawada implied that the expert fabricated his diagnosis to coincide with the defendant's theory of the case:
I mean, you pick up Mr. Hughes as a ... client for the court, initially, and you are not able to make any decision, and then what happens is after you are hired by the defense, you are able to come to a conclusion?
More improperly, in rebuttal argument, Zawada asserted that defense counsel paid his expert to fabricate a diagnosis:
He knows the result he is looking for. Subject comes in with schizophrenic-potential schizophrenic diagnosis. He knows right there what he is looking for, and $950 later, yes, that's what he's got....
*865 Also in rebuttal, Zawada improperly argued that mental health experts in general create excuses for criminals:
How about the Judge back there in New York, was it, that was infatuated with the secretary or somebody else and he followed her around and sent her notes and sent her letters and all kinds of things and wouldn't leave her alone. I don't know if he stalked her or not, and ultimately they looked into the case a little bit. You know what they did, they created a syndrome for him to try to justify his action.

(Emphasis added.)
¶ 6 The hearing officer concluded that Zawada's conduct, wholly unsupported by evidence of any kind, violated Ethical Rule ("ER") 1.1 (competence),[1] ER 3.1 (assertions made without good faith basis in law or fact), ER 3.4(e) (trial tactics unsupported by admissible evidence), and ER 8.4(d) (conduct prejudicial to the administration of justice). As a result, the hearing officer recommended (a) that Zawada be censured and placed on probation for six months, (b) that he be required to attend fifteen hours of continuing education that addresses the effective use of and response to psychiatric and psychological testimony, (c) that he be prohibited from handling any case involving a significant mental health component until he completes the continuing education requirement, and (d) that he be assessed the costs and expenses of the disciplinary proceedings.
¶ 7 The Disciplinary Commission modified the hearing officer's recommended sanction by removing the probation and continuing education requirement and adding as a requirement a Member Assistance Program ("MAP") referral. Zawada sought review of the Commission's decision and this court denied his petition. Nevertheless, the court, under Supreme Court Rule 59(i), determined, sua sponte, to review the proposed discipline and, in light of the record, to decide whether the sanction should include a period of suspension.

II. Discussion
A. The Court Has Authority, Sua Sponte, to Review Zawada's Actions.
¶ 8 Zawada challenges this court's legal authority to take sua sponte review of the appropriate sanction in this case, arguing that Supreme Court Rule 53(e)(7) (subsequently renumbered Rule 59(i)) permits review only if the Commission has recommended suspension or disbarment, and where no timely petition for review is filed. He argues that because neither of these requirements has been met, the Supreme Court cannot review this action. Zawada misreads this court's authority to review disciplinary matters.
¶ 9 "[T]he Supreme Court of Arizona has the exclusive jurisdiction to regulate the admission to the practice of law and the discipline of those admitted." In re Riley, 142 Ariz. 604, 607, 691 P.2d 695, 698 (1984). As a result, "the Bar Disciplinary Board and its committees are mere arms of this court and can have no greater jurisdiction or authority than this court." Id. at 608, 691 P.2d at 699. Under Zawada's interpretation of the rule, the court would be bound by the Commission's disciplinary decision, even though the Commission derives its authority and jurisdiction from the court. Zawada contends that when the Commission recommends a sanction less than suspension, the court has no jurisdiction to review that particular sanction. The result is illogical and inconsistent with case law as well as the Supreme Court Rules. See id.; see also Ariz. R. Sup.Ct. 32(a)(2) (This court may "discipline a member when it is satisfied that such member is not mentally or morally qualified to practice law even though none of the specific grounds for discipline set forth in these rules exist.") (emphasis added) (formerly Rule 31(a)(2)); Ariz. R. Sup.Ct. 33(b) (stating that the supreme court has power to impose, without limitation and on its own motion, the suspension of an attorney).
*866 ¶ 10 Rule 59 does not place the limitation on the court that Zawada urges. The Rule provides:
If no timely petition for review of a commission recommendation of suspension or disbarment is filed, the disciplinary clerk shall prepare and file a certificate attesting to those facts, and transmit to the court copies of the commission report and related order, the certificate, and a form of judgment for signature and entry by the clerk of the court. Within sixty (60) days, the court, in its discretion, may decline review, or it may grant review sua sponte. If the court grants review, the record shall be transmitted to the clerk.
Ariz. R. Sup.Ct. 59(i). The rule is clear. The language merely addresses the procedures to be followed when no petition for review is filed. There is no suggestion that when a petition has been filed, the court is stripped of authority to review the case sua sponte on other issues. Were that the case, an attorney subject to discipline could necessarily avoid review of certain issues raised in a disciplinary proceeding by filing a petition addressing other matters. The intent of the rule does not contemplate that result.

B. Standard of Review.
¶ 11 "In disciplinary proceedings, this court is the ultimate trier of fact and law, requiring clear and convincing evidence of all facts." In re Brady, 186 Ariz. 370, 373, 923 P.2d 836, 839 (1996). Although the hearing officer's factual findings and the Commission's recommendations are not ultimately determinative, they deserve great weight. Id.
C. The Sanctions Imposed In Light of the Purposes of Lawyer Discipline.
¶ 12 Lawyer discipline serves two main purposes: (1) to protect the public and the courts and (2) to deter the attorney and others from engaging in the same or similar misconduct. In re Kleindienst, 132 Ariz. 95, 102, 644 P.2d 249, 256 (1982) (citing In re Stout, 122 Ariz. 503, 596 P.2d 29 (1974)). Accomplishing these objectives promotes and maintains confidence in the bar's integrity. In re Horwitz, 180 Ariz. 20, 29, 881 P.2d 352, 361 (1994). To this end, Arizona generally follows the American Bar Association's Standards for Imposing Lawyer Sanctions (1991) ("ABA Standards ") to help determine appropriate discipline. In re Wolfram, 174 Ariz. 49, 57, 847 P.2d 94, 102 (1993). ABA Standard 3.0 states that the court should consider four factors: (1) the duty violated, (2) the lawyer's mental state, (3) the potential for actual injury or actual injury caused by the lawyer's misconduct, and (4) the existence of aggravating and mitigating factors. We also oversee the proportionality of discipline imposed in analogous cases. In re Bowen, 178 Ariz. 283, 286, 872 P.2d 1235, 1238 (1994). Viewed in its entirety, the record in this disciplinary matter clearly establishes that Zawada indeed engaged in intentional and egregious prosecutorial misconduct, and that serious consideration by this court of the appropriate sanction is fully warranted.

(1) The Duty Violated
¶ 13 The hearing officer and the Commission found that clear and convincing evidence established Zawada's violations of ER 3.1 (assertions made without good faith basis in law or fact), ER 3.4(e) (trial tactics unsupported by admissible evidence), and ER 8.4(d) (misconduct prejudicial to the administration of justice).[2] We agree. Although the *867 State Bar also alleged that Zawada violated ER 3.4(c) (knowing disobedience of an obligation under the rules), inexplicably the hearing officer did not find clear and convincing evidence that Zawada violated that rule. The hearing officer stated only that "[t]he `knowing' component of 3.4(c) was not proven." We believe the hearing officer erred.
¶ 14 Ethical Rule 3.4(c) states: "[A lawyer shall not] knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]" One such obligation is that a prosecutor cannot "imply unethical conduct on the part of an expert witness without having evidence to support the accusation." Hughes, 193 Ariz. at 86, ¶ 59, 969 P.2d at 1198 (citing State v. Bailey, 132 Ariz. 472, 479, 647 P.2d 170, 177 (1982)). The record demonstrates with utmost clarity that Zawada knowingly disobeyed this obligation under the rule, placing him in direct violation of ER 3.4(c). The Arizona Rules of Criminal Procedure permitted the defendant, Hughes, to present expert psychiatric and psychological testimony to support the defense of insanity. In fact, the rules prescribe a detailed and specific role for mental health professionals to assess a criminal defendant's mental state. See Ariz. R.Crim. P. 11. Faced with such expert testimony for the defendant, a prosecutor has several options: he can rebut the testimony with controverting evidence; he can stipulate to the accuracy of the testimony; he can attack the defense expert through legitimate cross-examination; or he can ignore the testimony altogether. But a prosecutor cannot attack the expert with non-evidence, using irrelevant, insulting cross-examination and baseless argument designed to mislead the jury and undermine the very purpose of the rule. A prosecutor is surely entitled to an opinion as to the persuasiveness or validity of mental health evidence presented but must nevertheless adhere to established rules and standards in the presentation of evidence and argument in the courtroom.
¶ 15 Knowing behavior is established by invoking, among other things, objective factors that include "the situation in which the prosecutor found himself, the evidence of actual knowledge and intent and any other factors which may give rise to an appropriate inference or conclusion." Pool, 139 Ariz. at 108 n. 9, 677 P.2d at 271 n. 9. Applying this standard, there can be no doubt that Zawada, an experienced prosecutor, was aware of his direct disobedience of a court rule.
¶ 16 Zawada's misconduct occurred in part during cross-examination when he accused the psychiatrist of indecision and of reaching a conclusion of insanity only after he was hired by the defense and paid for his services. Zawada knew there was no evidentiary basis for the accusation, nor did he offer one. He continued the attack in closing argument, suggesting, still without evidence, that defense counsel paid money to the mental health expert to fabricate a diagnosis of insanity for the defendant. This was not a case of negligence; rather, it was an intentional, knowing attack by Zawada on defense counsel, on the experts, and on the mental health profession. Zawada's actions unquestionably indicate he knew his conduct constituted outright disobedience in violation of ER 3.4(c).

(2) Zawada's Mental State
¶ 17 The hearing officer's conclusion with regard to Zawada's mental state in violating the rules is equally clear: "[He] violated the duties to his client and to the legal system. The conduct was intentional, although [he] believed that his actions were well-founded and appropriate." Based on the complete record, the court concludes that Zawada's rebuttal arguments and cross-examination of the experts were grossly improper and deliberate and thus in violation of the rule that protects the defendant's right to present the defense of insanity. With specific reference to our decision in Hughes, we declared in Jorgenson:
[Zawada's method of prosecution] was "a dishonest way to represent the State ..., and it was especially dishonest ... where the evidence of insanity was substantial, and where the [s]tate had no evidence that [Defendant] had fabricated an insanity defense." We unanimously concluded that the "evidence of mental illness was *868 overwhelming" and Defendant's case for acquittal on grounds of insanity was "substantial." The state overwhelmed Defendant's insanity defense, "but it did not do so with evidence; it did so with prosecutorial misconduct." We condemned this win-by-any-means strategy, agreeing with Defendant's argument that it "was a direct attempt to ... prejudice the jury" and to put the fear of acquittal in the jurors' minds.
198 Ariz. at 390-91, ¶ 2, 10 P.3d at 1177-78 (second alteration in original) (internal citations omitted).
¶ 18 In his attempt to discredit, Zawada attacked the experts, their profession and credibility through disingenuous, baseless argument and cross-examination. This was highly improper and provides ample evidence that Zawada's actions were intentional and knowing, aimed at thwarting Hughes' insanity defense and gaining a conviction at any cost.

(3) Potential or Actual Injury
¶ 19 The more serious the injury, the more severe should be the sanction. See, e.g., In re Cardenas, 164 Ariz. 149, 152, 791 P.2d 1032, 1035 (1990) (noting that the difference between ABA Standards 4.41(b) (calling for disbarment) and 4.42(a) (calling for suspension) is the seriousness of the injury). Serious injury was caused by Zawada's misconduct. The criminal justice system suffered, as did society as a whole. When serious crime goes unpunished everyone suffers, not because the suspect was unidentifiable, but because a prosecutor's misconduct bars retrial as a matter of double jeopardy. Disciplinary Commissioner Cahill spoke accurately in his dissent from the Commission's recommendation: "Simply put, [Zawada's] knowing, deliberate and intentional misconduct either caused a murderer to walk free, or it helped convict an innocent man of first-degree murder. Either way, no harm could be more serious."

(4) Aggravating vs. Mitigating Factors
¶ 20 The hearing officer considered both aggravating and mitigating factors in determining the proper sanction to be recommended. Pursuant to ABA Standard 9.22(c), the officer found that Zawada engaged in a pattern of misconduct consisting of serious violations that occurred during both the Hughes trial and the Pool trial.[3] Together, these cases demonstrated repeated instances of misconduct in cases that involved serious consequences. We agree with that finding. In addition, we agree, pursuant to ABA Standard 9.22(i), that Zawada's substantial experience in the practice of law should be treated as an aggravating factor. The finding of substantial experience is justified by the fact Zawada has practiced law in Arizona since 1979.
¶ 21 No less important is that much of his experience as an attorney has come through many years working as a prosecutor. Because prosecutors' ethical duties exceed those of lawyers generally, substantial experience as a prosecutor may become a further aggravating circumstance, particularly in cases, as here, where the prosecutor should have learned much earlier to conform his conduct to the rules, but has not done so.[4]
¶ 22 We addressed this issue squarely in our very recent decision, In re Peasley, 208 Ariz. 27, 37, ¶ 40, 90 P.3d 764, 774 (2004), finding that "when a lawyer's substantial experience places that lawyer in a position that would be unavailable to a less experienced lawyer, and that lawyer's experience also affords, or should afford, a greater appreciation of the advantages of eliciting false *869 testimony, substantial experience may be considered a relevant aggravating factor." As a seasoned prosecutor in the Pima County Attorney's Office, Peasley, like Zawada, was given the responsibility of prosecuting capital cases. Id. An inexperienced attorney would not be given such responsibility. Further, Peasley's extensive experience as a prosecutor helped him understand how a jury would react to unfavorable evidence. Accordingly, he suborned perjured testimony to destroy the negative inference the jury would otherwise have drawn. Id.
¶ 23 Similarly, Zawada's substantial experience informed him how the jury would react if he did not impeach the defendant's experts. His substantial experience also informed him that an improper cross-examination such as the one he engaged in would affect the defense experts' credibility. As a result, Zawada, without supporting evidence, launched a full scale attack on the credibility of defendant's experts and on the mental health profession in general.
¶ 24 Thus we conclude, as in Peasley, that Zawada's substantial experience as a prosecutor is an aggravating factor. Cf. Maretick v. Jarrett, 204 Ariz. 194, 199, ¶ 19, 62 P.3d 120, 125 (2003); New Jersey v. Torres, 328 N.J.Super. 77, 744 A.2d 699, 708 (Ct.App.Div. 2000) ("A prosecutor is not simply another lawyer who happens to represent the state. Because of the overwhelming power vested in his office, his obligation to play fair is every bit as compelling as his responsibility to protect the public.").
¶ 25 Moreover, like the dissenting Commissioner, we find clear evidence that Zawada has refused, and to this day continues to refuse, to acknowledge wrongful conduct both in Hughes and in Pool. His unwillingness to recognize wrongful conduct has led Zawada to outright hostility. Such an attitude is an aggravating circumstance in itself under ABA Standard 9.22(g). At the disciplinary hearing, Zawada stated, "I'm here not because I did anything wrong. I'm not here because I did anything unethical, and I'm not here because I deserve to be punished for anything that's transpired." Since this disciplinary process began, this has been Zawada's attitude. In his own words, Zawada believes that "[t]his Court simply wishes to punish [him] for thinking [differently] on the issue of the admissibility of, reliability of, psychiatric-psychological testimony." He believes this case "expose[s] the Arizona Supreme Court's pro-psychiatry/anti-prosecution position; its pop culture values; it's [sic] overzealousness in pursuit of those values." Finally, he asserts that "there is no precedent in the history of Arizona jurisprudence" to suggest that he acted unethically. As the dissenting Commissioner noted,
[Zawada] fails to acknowledge that he is single-handedly responsible for much of the law in Arizona on the consequences of extreme prosecutorial misconduct. His sweeping statement about our jurisprudence omits mention of several pertinent cases, each of which addresses whether he has ever done anything unethical. State v. Pool [Pool v. Superior Court], State v. Hughes, and State v. Jorgenson.

It would be difficult, in view of Zawada's acrimonious statements to the hearing officer, to the Disciplinary Commission, and to this court, to conclude that Zawada acknowledges even a single violation. As a result, we find, pursuant to ABA Standard 9.22(g), that Zawada's continuing refusal to recognize what is clearly gross misconduct is a further aggravator to be considered in the process of determining the sanction in this case.
(5) Proportionality of Discipline Imposed in Analogous Cases
¶ 26 The hearing officer correctly noted the absence of Arizona case law with similar facts. The Supreme Court of Florida, however, was confronted with a prosecutorial misconduct case strikingly similar to the case before us. Florida Bar v. Schaub, 618 So.2d 202, 204 (Fla.1993). That decision, though not binding, is instructive.
¶ 27 The Supreme Court of Florida suspended Mr. Schaub, a prosecutor, because:
1. During cross-examination, Schaub improperly elicited irrelevant testimony from the defense's expert psychiatrist, Dr. Tanay, that a non-testifying expert had classified him as a "hired gun." Later, in *870 summation to the jury, Schaub again referred to Tanay as a "hired gun."
2. Schaub accused Dr. Tanay of charging $600 per hour for his deposition testimony. Yet, Schaub had a copy of the itemized bill showing Tanay charged $150 per hour.
3. Throughout his cross-examination, Schaub insulted Dr. Tanay, ignored the trial court's rulings on defense objections, and inserted his personal opinions on psychiatry and the insanity defense into his questioning.
Id. at 203.
¶ 28 Like Zawada, Schaub "refus[ed] to acknowledge the wrongful nature of his conduct." Id. at 204. And like Zawada, Schaub had substantial experience as a prosecutor. Id. Importantly, unlike Zawada, nothing in the Florida opinion suggests that Schaub's misconduct was repetitive, although neither he nor Zawada had a formal disciplinary record. Schaub received a thirty-day suspension. Id.
¶ 29 Suspension from the practice by reason of misbehavior either in the courtroom or in court-related proceedings is not without precedent in Arizona. In In re Alcorn, 202 Ariz. 62, 41 P.3d 600 (2002), this court, sua sponte, increased the Commission's recommended discipline of a thirty-day suspension to six months. Alcorn and Feola defended a doctor in a medical malpractice action against the doctor and a hospital. Id. at 64, ¶ 9, 41 P.3d at 602. By secret agreement, the injured plaintiff and the defendant doctor effectively pursued a "mock" trial, taking the court's time and resources without disclosing to the judge that the trial was a sham. Id. at 65, ¶ 11, 41 P.3d at 603. The agreement between the injured plaintiff and the doctor was concealed from the court even when the judge sensed the possibility that such an arrangement existed and asked about it. Id. at 66, ¶ 15, 41 P.3d at 604. The purpose of the sham trial was to help the plaintiff bring the hospital back into the case as a defendant by adducing damning information from the defendant doctor at trial, while at the same time having given the doctor a covenant not to execute on any judgment. Id. at 65, ¶ 12, 41 P.3d at 603.
¶ 30 In holding that a six-month suspension was appropriate, the court found that the attorneys' conduct was knowing and intentional and, among other things, had wasted valuable judicial resources. Id. at 74, ¶¶ 42-43, 41 P.3d at 612. The court found several mitigating factors, including a nonselfish motive, a cooperative attitude toward the disciplinary proceedings, and an unlikely repetition of such conduct in the future. Id. at 74-75, ¶¶ 45-46, 41 P.3d at 612-13.
¶ 31 In contrast, Zawada has remained hostile, utterly refusing to cooperate in the disciplinary proceedings. His unwillingness to acknowledge gross misconduct suggests at least some risk that Zawada, given the opportunity, would treat expert witnesses in another case with a serious mental health component in the same manner in which he treated the expert witnesses in Hughes. That risk, without appropriate discipline at this point, is unacceptable.
¶ 32 In In re Moak, 205 Ariz. 351, 71 P.3d 343 (2003), also in sua sponte review proceedings, this court increased the Commission's recommended discipline of six months' suspension to six months and one day in order to require Moak to follow the formal application and reinstatement procedure under the rule. See Ariz. R. Sup.Ct. 64(e).
¶ 33 Moak, the disciplined attorney, withheld vital evidence of his client's injuries sustained in a second car accident before the case went to trial on the first accident. Id. at 353-54, ¶ 10, 71 P.3d at 345-46. He thus knowingly misled the jury by withholding relevant evidence as to the occurrence of injuries for which the defendant clearly was not responsible. Equally serious, Zawada misled the jury by attacking the experts with irrelevant interrogation and baseless argument, all without evidence offered in support.
¶ 34 Finally, this court disbarred prosecutor Peasley because he knowingly introduced perjured testimony through a police witness in two capital trials. Peasley, 208 Ariz. at 41-42, ¶¶ 65-66, 90 P.3d at 778-79. The distinction between Peasley and Zawada is that Peasley concealed acts amounting to subornation of perjury, while Zawada misled the jury openly, appealing to fear and emotion. Both acts are serious and deserve to *871 be sanctioned. But Peasley's acts, because they involved fraud and concealment within the judicial system, are substantially more serious. Conversely, there was no intentional concealment on Zawada's part.

(6) The Proper Sanction
¶ 35 A mere censure of Zawada or even the imposition of probation without suspension, in our judgment, would undermine the disciplinary process applicable to all lawyers, would contravene the presumptive discipline suggested by the ABA Standards, and would be grossly disproportionate to discipline imposed in other cases in which serious misconduct was found. We agree with the dissenting member of the Disciplinary Commission:
A public rebuke will do nothing to deter [Zawada]. The Supreme Court's 1984 criticism of his trial tactics in State v. Pool [Pool v. Superior Court]in all practical effect a public censurehad no deterrent effect; he repeated his Pool misconduct in State v. Hughes. The Supreme Court's scathing assessment in the State v. Hughes opinion also has had no effect; [Zawada] is still right and everyone else is wrongand biased. Finally, even State v. Jorgenson is not enough to deliver the message to [Zawada]. What else can be said to get him to obey the law? Why do we think he will heed our censure, when Supreme Court opinions mean absolutely nothing to him?
Disciplinary Commission Report, at 10 (Cahill, dissenting).
¶ 36 ABA Standard 6.22 recommends that suspension be imposed when a lawyer "knowingly" disobeys a court order or rule. Standard 6.23, on the other hand, recommends a censure for disobedience that was merely negligent. Zawada's misconduct in the prosecution of the Hughes case was knowing and intentional, not merely negligent. Further, in light of the aggravating circumstances, including the evidence of prior misconduct in the Pool case, the single mitigating factor absence of prior bar disciplineis not sufficient to justify a lesser sanction. We must apply discipline here where Zawada has acted knowingly or intentionally, where aggravating factors outweigh mitigating factors, and where substantial damage resulted.
¶ 37 Sanctions should be reasonably proportionate. On this record, therefore, we believe that a suspension, together with a subsequent probationary period, a referral to the Member Assistance Program, and requiring continuing education hours, will have the best chance of accomplishing the purposes of lawyer discipline.

III. Conclusion and Order
¶ 38 Based on the record, Mr. Zawada is hereby suspended from the practice of law in Arizona for six months plus one day, beginning thirty days from the date of this opinion. Further, upon reinstatement, Mr. Zawada shall be placed on probation, under bar supervision, for one year. He shall also be referred to the Member Assistance Program in which he shall participate under conditions imposed on him by Program officers. Mr. Zawada shall attend fifteen hours of continuing education that addresses the effective use of and response to psychiatric and psychological testimony, and shall not participate in any case involving a mental health component until such time as he shall have completed the continuing education requirement. Finally, Mr. Zawada is ordered to pay the costs and expenses of these disciplinary proceedings.
CONCURRING: RUTH V. McGREGOR, Vice-Chief Justice, REBECCA WHITE BERCH, MICHAEL D. RYAN and ANDREW D. HURWITZ, Justices.
NOTES
[1]  The Disciplinary Commission did not agree that Zawada's conduct evidenced incompetence and therefore found no ER 1.1 violation.
[2]  In addition to Zawada's improper cross-examination and argument regarding Hughes' mental health, the hearing officer and Commission found that Zawada also violated these three ERs when, in closing argument, he improperly invoked personal fear in the jury to create unfair prejudice. Zawada warned the jury of possible future consequences of its decision:

You know, the next time you are out on a nice, pretty, sunny afternoon, perhaps with your family, and you are driving along the roads or maybe you are at a picnic, your radio is on and you hear about a murder or something like that, or an aggravated assault, you think back to this case you are going to have to be able to say right then and there that you were convinced that the evidence was clear and convincing that this man was insane. Not just paranoid schizophrenic, not mentally ill, not possibly mentally ill, but insane. Because you know, you go back there in your deliberation now and you're sitting there and you can't imagine that day, ladies and gentlemen, when you hear this on the report and you can't say, yes, I was clearly convinced, you know, that the defendant carried his burden.
[3]  Zawada was the prosecutor in Pool, and there, as in Hughes, double jeopardy attached because Zawada "intentionally engaged in improper conduct for the purpose of forcing defendant to seek a mistrial so that the prosecution could procure a new indictment with correct charges." Pool v. Superior Court, 139 Ariz. 98, 107, 677 P.2d 261, 270 (1984). The court found his conduct to be "egregiously incorrect." Id.
[4]  We do agree, in mitigation, that Zawada does not have a prior disciplinary record with the Bar. ABA Standard 9.32(a). However, we accord little or no consideration to the absence of a disciplinary record when there is evidence of prior, known misconduct. See In re Peasley, 208 Ariz. 27, 38-39 ¶¶ 51-52, 90 P.3d 764, 775-76 (2004). Such is the case here. See Pool, 139 Ariz. at 98, 677 P.2d at 261.


                                Illinois Official Reports

                                        Appellate Court

            Doe v. International Psychoanalytical Ass’n, 2015 IL App (1st) 140410

Appellate Court           JANE  DOE,  Plaintiff-Appellee, v. INTERNATIONAL
Caption                   PSYCHOANALYTICAL ASSOCIATION, Defendant-Appellant.

District & No.            First District, Fifth Division
                          Docket No. 1-14-0410

Opinion filed             December 31, 2014
Opinion withdrawn         March 25, 2015
Modified
opinion filed             March 27, 2015

Held                       In an action filed in Illinois for intentional and negligent infliction of
(Note: This syllabus emotional distress and tortious interference with prospective
constitutes no part of the economic advantage arising from the publication of sensitive clinical
opinion of the court but information pertaining to plaintiff by a psychoanalyst who was a
has been prepared by the member of defendant psychological association that made a
Reporter of Decisions presentation at a conference held by defendant in which she used the
for the convenience of information as an example, the trial court properly dismissed
the reader.)               defendant’s motion to dismiss the action based on forum non
                           conveniens seeking to transfer the case to Venezuela, which was the
                           residence of both plaintiff and the psychoanalyst but was also a forum
                           that did not recognize plaintiff’s cause of action, since the trial court
                           did not abuse its discretion in balancing the relevant public and private
                           interest factors.

Decision Under            Appeal from the Circuit Court of Cook County, No. 13-L-005649; the
Review                    Hon. Moira S. Johnson, Judge, presiding.

Judgment                  Affirmed.
       Counsel on                Abram Moore, of K&L Gates LLP, of Chicago, for appellant.
       Appeal
                                 Leon Zelechowski, Ltd., of Chicago, for appellee.

       Panel                     JUSTICE GORDON delivered the judgment of the court, with
                                 opinion.
                                 Presiding Justice Palmer and Justice Reyes concurred in the judgment
                                 and opinion.

                                                  OPINION

¶1                                            BACKGROUND
¶2                                                 I. Parties
¶3           The plaintiff is a Venezuela resident who was a patient of psychoanalyst Alicia Leisse
         de Lustgarten (Ms. Leisse), who also lives and practices in Venezuela. At the time of the
         events that led to the filing of this lawsuit, plaintiff was a postgraduate student in clinical
         community psychology working as a clinical therapist at an agency dealing with abused
         women in Venezuela. There is no evidence that she has ever been in Chicago or in the United
         States.
¶4           The defendant is a not-for-profit corporation incorporated in England and Wales, with its
         principal place of business in London, England. Its only contact with Illinois was a conference
         that it held in Chicago in May 2009 for mental health providers where Ms. Leisse, a member of
         the board of representatives of defendant, made a presentation and used plaintiff’s
         unauthorized sensitive clinical material as an example, which defendant later published on the
         defendant’s website in England without using plaintiff’s name.

¶5                                             II. Cause of Action
¶6           Plaintiff filed this action against defendant for intentional infliction of emotional distress,
         negligent infliction of emotional distress, and tortious interference with prospective economic
         advantage, claiming that as a direct result of the publication of plaintiff’s sensitive clinical
         material, people in her community could easily identify her, causing her to withdraw from her
         professional community and suffer mental distress and anguish, creating a diagnosis of
         post-traumatic stress disorder.

¶7                                       III. Posture of Case in Illinois
¶8           After defendant filed a motion to dismiss based on forum non conveniens, seeking a
         transfer to Venezuela, the circuit court denied the motion. Defendant then filed a petition for
         leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(2) (eff. Feb. 16, 2011), which
         this court granted, and this interlocutory appeal follows.

¶9                                            ANALYSIS
¶ 10        This is an interlocutory appeal, taken pursuant to Supreme Court Rule 306. The rule
         provides in relevant part:

                                                      -2-
                  “(a) *** A party may petition for leave to appeal to the Appellate Court from the
              following orders of the trial court:
                      ***
                      (2) from an order of the circuit court allowing or denying a motion to dismiss on
                  the grounds of forum non conveniens ***.” Ill. S. Ct. R. 306(a)(2) (eff. Feb. 16,
                  2011).
       This court granted defendant’s petition for leave to appeal the trial court’s denial of its forum
       non conveniens motion.

¶ 11                                  I. Forum Non Conveniens Doctrine
¶ 12       Forum non conveniens is an “equitable doctrine founded in considerations of fundamental
       fairness and the sensible and effective administration of justice.” Langenhorst v. Norfolk
       Southern Ry. Co., 219 Ill. 2d 430, 441 (2006); Gridley v. State Farm Mutual Automobile
       Insurance Co., 217 Ill. 2d 158, 169 (2005). This doctrine permits a trial court to transfer a case
       when “trial in another forum ‘would better serve the ends of justice.’ ” Langenhorst, 219 Ill. 2d
       at 441 (quoting Vinson v. Allstate, 144 Ill. 2d 306, 310 (1991)); Gridley, 217 Ill. 2d at 169.
¶ 13       The burden is on the party asking for the dismissal to show that the relevant factors
       “ ‘strongly favor’ ” transfer. (Emphasis omitted.) Langenhorst, 219 Ill. 2d at 442 (quoting
       Griffith v. Mitsubishi Aircraft International, Inc., 136 Ill. 2d 101, 108 (1990)); Woodward v.
       Bridgestone/Firestone, Inc., 368 Ill. App. 3d 827, 833 (2006) (in product liability case where
       vehicle accident was in Australia with an Australian plaintiff, burden was on defendant to
       show factors strongly favoring transfer to Australia); Ellis v. AAR Parts Trading, Inc., 357 Ill.
       App. 3d 723 (2005) (in product liability case where airplane crash was in the Philippines with
       Philippine decedents, burden was on defendant to show factors strongly favoring transfer to
       the Philippines).
¶ 14       “A trial court is afforded considerable discretion in ruling on a forum non conveniens
       motion.” Langenhorst, 219 Ill. 2d at 441. An appellate court will reverse a circuit court’s
       decision on a forum non conveniens motion only if the “defendants have shown that the circuit
       court abused its discretion in balancing the relevant factors.” Langenhorst, 219 Ill. 2d at 442;
       Gridley, 217 Ill. 2d at 169; Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 176-77 (2003).
       The Illinois Supreme Court has stated: “A circuit court abuses its discretion in balancing the
       relevant factors only where no reasonable person would take the view adopted by the circuit
       court.” Langenhorst, 219 Ill. 2d at 442; Gridley, 217 Ill. 2d at 169; Dawdy, 207 Ill. 2d at 177.
¶ 15       The issue, then, is not what decision we would have reached if we were reviewing the facts
       on a clean slate, but whether the trial court acted in a way that no reasonable person would. We
       find, in the case at bar, that a reasonable person could certainly have taken the view adopted by
       the trial court.

¶ 16                                    II. Plaintiff’s Choice of Forum
¶ 17       Before weighing the relevant factors, a court must first decide how much deference to give
       to a plaintiff’s choice of forum. Langenhorst, 219 Ill. 2d at 448 (the supreme court determined
       the appropriate amount of deference, before weighing the relevant factors).
¶ 18       In the case at bar, the trial court reasonably accorded some deference to plaintiffs’ choice
       of forum. Normally, the plaintiff’s choice of forum is a “substantial” factor in deciding a forum

                                                   -3-
       non conveniens motion. Dawdy, 207 Ill. 2d at 173; Griffith v. Mitsubishi Aircraft International,
       Inc., 136 Ill. 2d 101, 106 (1990). However, the Illinois Supreme Court has stated that where the
       plaintiff chooses a forum other than where she resides, her choice “is not entitled to the same
       weight” as the choice of her home forum. Dawdy, 207 Ill. 2d at 173-76; Gridley, 217 Ill. 2d at
       170. In the case at bar, plaintiff is Venezuelan. Thus, her selection of a foreign forum “deserves
       less deference.” Griffith, 136 Ill. 2d at 106 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235,
       255-56 (1981)); Langenhorst, 219 Ill. 2d at 448; Gridley, 217 Ill. 2d at 170.
¶ 19        However, less deference is not the same as no deference. First American Bank v. Guerine,
       198 Ill. 2d 511, 518 (2002) (“ ‘the deference to be accorded is only less, as opposed to none’ ”
       (emphases in original) (quoting Elling v. State Farm Mutual Automobile Insurance Co., 291
       Ill. App. 3d 311, 318 (1997))); Ellis v. AAR Parts Trading, Inc., 357 Ill. App. 3d 723, 741
       (2005) (less deference “does not equal no deference”). See also Langenhorst, 219 Ill. 2d at 448
       (plaintiff’s choice of a foreign forum was “entitled to somewhat less deference” (emphasis in
       original) (citing Guerine, 198 Ill. 2d at 517 (“somewhat less deference”))). Thus, in the case at
       bar, the trial court reasonably accorded some deference to plaintiff’s choice of a forum.

¶ 20                                      III. Private Interest Factors
¶ 21        The Illinois Supreme Court has held that a court must consider both “the private and public
       interest factors” in deciding a forum non conveniens motion. Langenhorst, 219 Ill. 2d at 443;
       Gridley, 217 Ill. 2d at 170; Dawdy, 207 Ill. 2d at 172-73. The private interest factors include:
       “ ‘(1) the convenience of the parties; (2) the relative ease of access to sources of testimonial,
       documentary, and real evidence; and (3) all other practical problems that make trial of a case
       easy, expeditious, and inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443 (quoting Guerine, 198
       Ill. 2d at 516); Gridley, 217 Ill. 2d at 170; Dawdy, 207 Ill. 2d at 172.

¶ 22                                     A. Convenience of the Parties
¶ 23        Defendant failed to provide a single affidavit stating that it would be inconvenient to
       litigate this matter in Cook County, Illinois, and that a Venezuelan court is much more
       convenient. In the instant case, plaintiff resides in Venezuela but selects Illinois as her
       designated forum. Defendant’s not-for-profit corporation is incorporated in both England and
       Wales, with its principal place of business in London, England. Ms. Leisse, who is not a party
       to this lawsuit, but who could be an important witness, resides in Venezuela. Defendant’s
       employees who processed certain forms to defendant certifying that her presentation did not
       include any sensitive clinical material are located in England. Additionally, defendant’s
       employees who managed the website where the audio file from the Chicago presentation was
       published are also located in England. Dr. Abel Feinstein, the chair of defendant’s program
       committee for the conference in Chicago, who ultimately requested that the audio file be
       removed from defendant’s website, resides in Argentina.
¶ 24        The circuit court found that because Chicago was the site of where the tortious conduct
       initiated, plaintiff’s choice of forum is convenient. To be perfectly correct, the tortious conduct
       by defendant caused injury to plaintiff when it placed the sensitive material on its website in
       England. However, the events that led up to the placement of the material on its website did
       occur in Chicago, where the sensitive matter was first published.
¶ 25        In addition, plaintiff’s damage witnesses would all probably be residing in Venezuela, but
       that may not reflect on defendant’s burden of showing that the private and public interest

                                                    -4-
       factors strongly favor transferring the action to Venezuela when defendant fails to file an
       affidavit to show that it is likely to call those witnesses in its case in chief. As part of
       defendant’s burden, it must show that plaintiff’s chosen forum is inconvenient to defendant
       and that another forum is more convenient to all parties. Defendant cannot merely assert that
       plaintiff’s chosen forum is inconvenient to plaintiff. Guerine, 198 Ill. 2d at 518. Unless the
       balance of factors strongly favors a defendant’s choice of forum, the plaintiff’s choice of forum
       should rarely be disturbed. Langenhorst, 219 Ill. 2d at 444.
¶ 26       Defendant admits that its employees in England can give testimony in Illinois as easily as
       Venezuela. Thus, there is no real inconvenience for defendant if this case remains in Cook
       County, Illinois.

¶ 27                                  B. Ease of Access to Evidence
¶ 28       The second private factor, the relative ease of access to sources of testimonial,
       documentary, and real evidence, also does not shift the balance of this forum non conveniens
       analysis in favor of a Venezuela court.
¶ 29       This court acknowledges that when witnesses are scattered throughout several countries,
       there may not be one predominant country and thus transfer should be denied. A trial court
       does not abuse its discretion in denying a motion to transfer when most of the potential trial
       witnesses are scattered and no single country enjoys a predominant connection to the litigation.
       Ammerman v. Raymond Corp., 379 Ill. App. 3d 878, 886 (2008) (citing Langenhorst, 219 Ill.
       2d at 453). In this case, witnesses are scattered between Venezuela, England, and Argentina.

¶ 30                                   C. All Other Practical Problems
¶ 31        The third private factor that the courts consider refers to all other practical problems, which
       includes the process of securing unwilling witnesses. The defendant has provided no affidavit
       to show that there is an unwilling witness who would be unwilling to appear or that the
       unwilling witness could not be compelled to appear through the law of international treaties.
       Defendant argues that the parties will endure great expense in litigating the matter in Cook
       County, Illinois, but does not show the court how that expense will diminish for defendant if
       the case proceeded in Venezuela.
¶ 32        As for the compulsory process of unwilling witnesses and the cost of obtaining the
       attendance of willing witnesses, these factors do not strongly favor dismissal in favor of
       Venezuela. “If the case remains in Illinois, witnesses in [Venezuela] are not compelled to come
       to the United States; and if the forum is changed to [Venezuela], American witnesses [or
       witnesses from other countries] are not compelled to appear in [Venezuela].” Woodward, 368
       Ill. App. 3d at 835 (“Venezuela” substituted for “Australia”); Ellis, 357 Ill. App. 3d at 743-44.
¶ 33        Similarly, while some of the documents and records may be in Venezuela, nonetheless, the
       location of documents and records has become a less significant factor in forum
       non conveniens analysis in the modern age of email, Internet, telefax, copying machines, and
       worldwide delivery services, since they can now be easily copied and sent. Woodward, 368 Ill.
       App. 3d at 834.
¶ 34        Observing correctly that potential witnesses and evidence was scattered among different
       countries, the trial court concluded that this factor did not tilt in favor of any one forum. We
       cannot find that this conclusion was an abuse of discretion. Woodward, 368 Ill. App. 3d at 834

                                                    -5-
       (where potential witnesses are “scattered among different forums,” no one forum can be said to
       be more convenient); Ellis, 357 Ill. App. 3d at 747; Berbig v. Sears Roebuck & Co., 378 Ill.
       App. 3d 185, 188 (2007).
¶ 35        Lastly, the court must consider all the other “ ‘practical problems that make trial of a case
       easy, expeditious, and inexpensive.’ ” Langenhorst, 219 Ill. 2d at 443 (quoting Guerine, 198
       Ill. 2d at 516). Both plaintiff’s and defendant’s attorneys maintain offices in Cook County. The
       Illinois Supreme Court has stated that while little weight should be accorded this factor, a court
       may still consider it in the forum non conveniens analysis. Dawdy, 207 Ill. 2d at 179;
       Woodward, 368 Ill. App. 3d at 836.
¶ 36        In sum, the private interest factors, when considered in light of all relevant facts and
       evidence in the record, do not strongly weigh in favor of transfer to Venezuela. We now turn to
       the relevant public interest factors in our forum non conveniens analysis.

¶ 37                                     IV. Public Interest Factors
¶ 38        When deciding a forum non conveniens motion, a court must also consider the public
       interest factors. These factors include: “(1) the interest in deciding controversies locally; (2)
       the unfairness of imposing trial expense and the burden of jury duty on residents of a forum
       that has little connection to the litigation; and (3) the administrative difficulties presented by
       adding litigation to already congested court dockets.” Langenhorst, 219 Ill. 2d at 443-44
       (citing First American Bank v. Guerine, 198 Ill. 2d 511, 516-17 (2002)); Gridley, 217 Ill. 2d at
       170; Dawdy, 207 Ill. 2d at 173.
¶ 39        The trial court evaluated the first two public factors together, which included the interest in
       deciding the alleged controversy locally and the unfairness of imposing the expense of a trial
       and the burden of jury duty on residents of a county with little connection to the litigation. We
       will also decide these two public factors together. Defendant’s own “Code of Ethical
       Principles” requires that all “psychoanalysts shall respect the confidentiality of their patients’
       information and documents.” In addition, all medical providers are subject to this duty when in
       Illinois, and Cook County jurors certainly have an interest in deciding abuses of this duty.
       When the information was first presented by Ms. Leisse in Cook County and later published by
       defendant on its website in London, England, it became the interest of fair-minded people.
       These types of cases are not localized, because they have international implications concerning
       a person’s right to privacy on matters disclosed to medical providers.
¶ 40        Defendant claimed that the trial court erred by refusing to conduct an abbreviated
       choice-of-law analysis and further claims that the substantive Venezuelan law would apply in
       this case. We agree.
¶ 41        The Illinois Supreme Court set forth the rules for determining choice-of-law questions. The
       court instructed that the reviewing court will apply the “most significant contacts” rule, as the
       local law which has the most significant relationship with the occurrence and with the parties.
       When we apply this to a multicountry defamation case, the country of most significant
       relationship will usually be the country where the person allegedly defamed was domiciled at
       the time. Ingersoll v. Klein, 46 Ill. 2d 42, 48 (1970). The same standard should apply to the
       unauthorized publication of sensitive personal material.
¶ 42        This concept is based on the Restatement (Second) of Conflict of Laws § 150(2) (1971),
       which states: “When a natural person claims that he has been defamed by an aggregate

                                                    -6-
       communication, the state of most significant relationship will usually be the state where the
       person was domiciled at the time, if the matter complained of was published in that state.”
       Applying this concept to multicountry publication of unauthorized sensitive material, the place
       of the greatest potential injury to the reputation of the plaintiff will be the place where plaintiff
       lives and works, which is Venezuela.
¶ 43        The need to apply the law of a foreign jurisdiction has been considered a significant factor
       favoring dismissal of a suit on grounds of forum non conveniens. Moore v. Chicago & North
       Western Transportation Co., 99 Ill. 2d 73, 80 (1983). However, it is also a significant factor
       that the publication of plaintiff’s unauthorized sensitive clinical material first originated in
       Illinois, which is a hub for international conventions and presentations. As such, Illinois has a
       strong interest in maintaining some order in the manner in which those in the international
       conventions and presentations treat innocent people. Illinois also has a strong interest in
       making sure that, especially in this century and in the future, concepts of fairness and justice
       prevail in our communities and in our country. We know what a litigant can expect in our
       courts, but know not what happens in the courts of other countries. Although the
       administration of Venezuelan law in this case will not be easy for the trial court, our experience
       dictates that our courts will do their best to provide both sides a fair and just trial.
¶ 44        Thus, we cannot find that the trial court’s error by refusing to conduct an abbreviated
       choice-of-law analysis, which finds that Venezuelan law should be applied, is enough to
       dismiss this case for forum non conveniens or for this court to say that the trial court abused its
       discretion.
¶ 45        Comparative congestion in the respective courts is not a factor in the issue before us.
       Defendant offered no evidence that there is less congestion in Venezuelan courts; it has not
       even named the specific forum in Venezuela that it believes should handle this case.
       Woodward, 368 Ill. App. 3d at 836 (this factor received little weight where defendants “offered
       no evidence” of less court congestion in their proposed forum); Berbig v. Sears Roebuck &
       Co., 378 Ill. App. 3d 185, 189 (2007) (“court congestion is a relatively insignificant factor,
       especially where the record does not show the other forum would resolve the case more
       quickly”). In addition, our supreme court has held that “[w]hen deciding forum non conveniens
       issues, the trial court is in the better position to assess the burdens on its own docket.”
       Langenhorst, 219 Ill. 2d at 451. Thus, we cannot find that the trial court abused its discretion in
       giving this factor little weight.

¶ 46                                       V. Balancing the Factors
¶ 47        In deciding a forum non conveniens motion, the trial court “must balance the private and
       public interest[ ]” factors. Dawdy, 207 Ill. 2d at 172; Gridley, 217 Ill. 2d at 169-70. The
       balancing should be done “without emphasizing any one factor.” Langenhorst, 219 Ill. 2d at
       443; Gridley, 217 Ill. 2d at 169; Dawdy, 207 Ill. 2d at 180. “On review, the trial court’s
       decision will be reversed only if *** the court abused its discretion in balancing the relevant
       factors.” Dawdy, 207 Ill. 2d at 176-77; Griffith, 136 Ill. 2d at 106.
¶ 48        In the case at bar, we find that the trial court did not abuse its discretion in balancing the
       relevant factors. First, plaintiff’s choice of forum merited some deference, although she chose
       a foreign forum. Second, the private and public interest factors did not weigh strongly in favor
       of transfer. Langenhorst, 219 Ill. 2d at 433 (affirming the denial of a motion to transfer the case
       to the accident site, even though plaintiff’s chosen forum was neither the accident site nor the

                                                     -7-
       site of her residence); Woodward, 368 Ill. App. 3d at 837-38 (affirming denial of a motion to
       transfer product liability case, even though plaintiffs’ chosen forum was neither the accident
       site nor the site of their residence); Ellis, 357 Ill. App. 3d at 748 (affirming denial of a motion
       to transfer product liability case, even though plaintiffs’ chosen forum was neither the site of
       the airplane crash nor the decedents’ residence).

¶ 49                                           CONCLUSION
¶ 50       For the foregoing reasons, we affirm the trial court’s order denying defendant’s motion to
       dismiss on forum non conveniens grounds. As discussed above, defendant moved to dismiss
       only in favor of an action in Venezuela. We find that the trial court did not abuse its discretion
       in finding that Venezuela was not a more convenient forum.
¶ 51       Since we find that the trial court did not abuse its discretion in denying defendant’s motion
       on this basis, we do not decide whether Venezuela was an adequate available forum.

¶ 52      Affirmed.

                                                    -8-


348 F.3d 867
UNITED STATES of America, Plaintiff-Appellee,v.Glenn Dwayne EDGAR, Defendant-Appellant.
No. 02-6195.
United States Court of Appeals, Tenth Circuit.
October 30, 2003.

Susan M. Otto, Federal Public Defender, Oklahoma City, OK, for Appellant.
F. Michael Ringer, Assistant United States Attorney (Robert G. McCampbell, United States Attorney, and Sue Tuck Richmond, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, OK, for Appellee.
Before TACHA, Chief Circuit Judge, SEYMOUR, Circuit Judge, and BRORBY, Senior Circuit Judge.
TACHA, Chief Circuit Judge.

1
On February 11, 2002, Defendant-Appellant Glen Dwayne Edgar pleaded guilty to manufacturing methamphetamine in violation of 21 U.S.C. § 841(a)(1) and to possessing a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i). Pursuant to his plea agreement, Mr. Edgar waived his right to appeal his conviction and sentence. Despite this agreement, Mr. Edgar filed a timely notice of appeal. Because we find that Mr. Edgar validly waived his right to direct appeal, we DISMISS.

I. Background

2
On December 12, 2001, a federal grand jury indicted Mr. Edgar on two counts of distributing methamphetamine (Counts I and II), one count of manufacturing methamphetamine (Count III), and one count of possessing firearms in furtherance of a drug trafficking crime (Count IV). Mr. Edgar entered into a plea agreement with the government on February 11, 2002. This agreement waived his right to appeal directly and to challenge collaterally his "guilty plea and any other aspect of his conviction" and his "sentence as imposed by the Court and the manner in which the sentence is determined," except in two limited circumstances not relevant here. In exchange for the plea, the government agreed to drop Counts I and II. The district court subsequently sentenced Mr. Edgar to a 120-month prison term on Count III and a 60-month prison term on Count IV. This appeal followed. We take jurisdiction pursuant to 28 U.S.C. § 1291.

II. Discussion

3
On appeal, Mr. Edgar contends that we should not enforce his waiver of appellate rights because (1) he received ineffective assistance of counsel and (2) the waiver was not knowing or voluntary.

4
On the first point, Mr. Edgar argues that he received ineffective assistance of counsel, which tainted the plea agreement, because he received essentially the same sentence under the plea agreement that he would have received if convicted at trial on all four counts. To support this claim, he alleges that he received little to no benefit from the plea agreement, yet gave up valuable appellate rights.

5
Although it is well established that we will not enforce a waiver that is the product of ineffective assistance of counsel, see United States v. Elliott, 264 F.3d 1171, 1173 (10th Cir.2001), we dismiss Mr. Edgar's direct appeal of this issue without reaching the merits of his claim. With rare exception, a defendant must raise ineffective assistance of counsel claims in a collateral proceeding, not on direct appeal. See United States v. Galloway, 56 F.3d 1239, 1240 (10th Cir.1995) (en banc) ("Ineffective assistance of counsel claims.... brought on direct appeal are presumptively dismissible, and virtually all will be dismissed."). Indeed, we have followed this practice even when the issues on direct appeal are sufficiently developed for us to pass judgment, reasoning that we benefit from the views of the district court regarding such claims. Id. Accordingly, we refuse to consider Mr. Edgar's ineffective assistance of counsel claim on direct appeal.

6
We turn next to Mr. Edgar's second argument. Despite evidence that he fully understood his plea agreement, Mr. Edgar argues that the district court's failure to discuss the appellate waiver during the plea colloquy establishes that the waiver was not knowing and voluntary.

7
Rule 11(b)(1)(N) of the Federal Rules of Criminal Procedure requires a district court to "inform [a] defendant of, and determine that the defendant understands... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence" before accepting a plea. Fed.R.Crim.P. 11(b)(1)(N). The commentary to Rule 11 notes that the Advisory Committee drafted the rule, in large part, to ensure that appellate waivers are knowing and voluntary. See Fed. R.Crim.P. 11(b)(1)(N), advisory committee notes to 1999 amendments ("Given the increased use of [waiver] provisions, the Committee believed it was important to insure that ... the waiver was voluntarily and knowingly made by the defendant.");1 see also United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1049 n. 6, 152 L.Ed.2d 90 (2002) ("[T]he Advisory Committee Notes provide a reliable source of insight into the meaning of a rule, especially when... the rule was enacted precisely as the Advisory Committee proposed.").

8
Rule 11(b)(1)(N) — enacted as Rule 11(c)(6) — became effective December 1, 1999. Prior to its enactment, district courts were under no obligation to discuss appellate waivers, and we only considered the absence of such a discussion to the extent that it illuminated whether the waiver was knowing and voluntary. See, e.g., United States v. Atterberry, 144 F.3d 1299, 1300 (10th Cir.1998). Nevertheless, prior to the enactment of Rule 11(b)(1)(N), we employed an error analysis when a district court failed to give other warnings that were then required by Rule 11. See, e.g., United States v. Vaughn, 7 F.3d 1533, 1535-36 (10th Cir.1993) (employing error analysis to review a district court's omission of the instructions required by Rule 11(e)(2)). In light of the clear text of Rule 11(b)(1)(N) and the Supreme Court's decision in Vonn, we see no reason why we should treat Rule 11(b)(1)(N) errors any differently. Vonn, 122 S.Ct. at 1054 (holding that the district court's failure to give a required warning, now embodied at Rule 11(b)(1), is reviewed under harmless error, if objection was made in the district court, or under plain error, if no objection was made). Thus, we conduct an error review when a district court fails to discuss the provisions of Rule 11(b)(1)(N) at the colloquy. Even under error review, however, the knowing and voluntary nature of a waiver remains important to the extent that it informs our error analysis.2

9
Following this guidance, we conclude that it is always error for a district court to fail to discuss an appellate waiver provision during a Rule 11 colloquy, although not always reversible error. This conclusion comports with the decisions of several other circuits. See, e.g., Teeter, 257 F.3d at 24 (finding that Rule 11 requires district courts to "inquire specifically at the change-of-the-plea hearing into any waiver of appellate rights" and that failure to do so "will constitute error and may serve to invalidate the waiver"); United States v. Siu Kuen Ma, 290 F.3d 1002, 1005 (9th Cir.2002) (same); Reyes, 300 F.3d at 559-60 (same).3

10
In deciding whether this omission constitutes reversible error, we must determine whether to review it under the harmless error or plain error standard. The Supreme Court has instructed that when a defendant fails to raise a Rule 11 error to the district court — as is true of Mr. Edgar — we review any alleged error under the plain error standard of Fed. R.Crim.P. Rule 52(b). See Vonn, 122 S.Ct. at 1046 ("hold[ing] that a silent defendant has the burden to satisfy the plain-error rule").

11
"To notice plain error under Fed. R.Crim.P. 52(b), the error must (1) be an actual error that was forfeited; (2) be plain or obvious; and (3) affect substantial rights, in other words, in most cases the error must be prejudicial, i.e., it must have affected the outcome...." United States v. Haney, 318 F.3d 1161, 1166 (10th Cir.2003) (en banc). "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotations omitted).

12
Under plain error analysis, we must first determine if actual error exists. Haney, 318 F.3d at 1166. As we discussed above, the district court erred by failing to discuss Mr. Edgar's waiver of appellate rights before accepting his plea.

13
Next, we must decide whether the error was plain. Id. Error "is `plain' if it is obvious or clear, i.e., if it is contrary to well-settled law." United States v. Duran, 133 F.3d 1324, 1330 (10th Cir.1998). Generally, we do not consider an error to be "plain" in the absence of "Supreme Court or controlling circuit authority, [where] other circuit authority is divided." Haney, 318 F.3d at 1167. This general rule, however, is most persuasive "where the explicit language of a statute or rule does not specifically resolve an issue[.]" United States v. Lejarde-Rada, 319 F.3d 1288, 1291 (11th Cir.2003).

14
Applying these considerations to the current case, we find that the district court's failure to discuss the appellate waiver provision was obvious. The congressional mandate embodied in Rule 11(b)(1)(N) is clear: "the court must inform the defendant of, and determine that the defendant understands ... the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence." Fed.R.Crim.P. Rule 11(b)(1)(N) (emphasis added). Therefore, we find that the district court committed an error, which was plain, by failing to discuss Mr. Edgar's waiver of appellate rights.

15
Third, we must determine whether the error affected substantial rights. See Duran, 133 F.3d at 1332. "An error affects substantial rights where the error was prejudicial, that is, if it affected the outcome of the district court proceedings." See United States v. Brown, 316 F.3d 1151, 1158 (10th Cir.2003) (internal quotations omitted). In the context of a plea agreement, an error is prejudicial if the defendant has shown that he would not have pleaded guilty if the district court had complied with Rule 11(b)(1)(N). See Vaughn, 7 F.3d at 1536 (finding that a district court's omission of an instruction required by then-Rule 11(e)(2) did not affect substantial rights, in part, because the defendant did "not allege that he would not have entered a guilty plea if the court had given the proper warning"). We may consult the whole record when considering the effect of any error on substantial rights. Vonn, 122 S.Ct. at 1055.

16
In the context of appellate waivers, our cases have recognized that the sine qua non of prejudice is whether the defendant knowingly and voluntarily waived his right to appeal.4 See, e.g., Chavez Salais, 337 F.3d at 1173. In determining whether such waivers are knowing and voluntary, we have looked to two sources: (1) the text of the plea agreement and (2) the plea colloquy. Id.

17
Considering these sources, we conclude that Mr. Edgar knowingly and voluntarily waived his right to direct appeal. First, the plea agreement — in plain language — explains the waiver of appellate rights. The plea agreement clearly states that Mr. Edgar waives his right to appeal and to challenge collaterally his "guilty plea and any other aspect of his conviction" and his "sentence as imposed by the Court and the manner in which the sentence is determined." Second, the signature section of that agreement reads, "By signing this agreement, defendant acknowledges that he has discussed its terms with his attorney and understands and accepts those terms." Third, Mr. Edgar attested in his petition to enter a plea of guilty that he (1) had sufficient time to discuss his case with his attorney and (2) entered into the plea agreement voluntarily. Fourth, during the plea colloquy, Mr. Edgar stated that he entered into the agreement "voluntarily and completely of [his] own free choice," that the plea agreement accurately reflected his agreement with the government, and that he was fully satisfied with the services of his attorney. See United States v. Rubio, 231 F.3d 709, 712 (10th Cir.2000) (finding that a waiver was knowing and voluntary based, in part, on statements made by the defendant during the plea colloquy).

18
Despite this substantial evidence, Mr. Edgar denies that the agreement was knowing and voluntary. To support this argument, he states that nothing in the record shows that he understood the waiver. This argument, however, misconstrues the proper burden allocation. Mr. Edgar has the burden to present evidence from the record establishing that he did not understand the waiver. Vonn, 122 S.Ct. at 1046. A mere silent record does not satisfy this burden. See Rubio, 231 F.3d at 712 (enforcing a waiver when "[n]othing in the record indicate[d] Defendant's decision to enter into the plea agreement was other than knowing and voluntary"). Moreover, as we noted above, we find that this record contains assurances that Mr. Edgar, a small business owner and a high school graduate with some college education, consulted with his attorney before signing the agreement, read it, and understood it. Because we find that Mr. Edgar fails to show evidence in the record to dispute his own written and verbal assertions, we find that the waiver was knowing and voluntary. See United States v. Standiford, 148 F.3d 864, 868 (7th Cir.1998) (statements made in a plea colloquy are presumed to be true).

19
We hold that Mr. Edgar's waiver, because it was knowing and voluntary, satisfies the essential purpose underlying Rule 11, despite the flawed colloquy. See Fed.R.Crim.P. 11(b)(1)(N), advisory committee notes to the 1999 amendments (stating that Congress designed Rule 11(b)(1)(N) to ensure that waivers are knowing and voluntary). Thus, because he knowingly and voluntarily entered into the plea agreement, the district court's failure to discuss the waiver did not affect Mr. Edgar's substantial rights. Because Mr. Edgar fails to satisfy the third prong of the plain error review, we have no occasion to decide whether the error below seriously affected the fairness, integrity, or public reputation of judicial proceedings. See Johnson, 520 U.S. at 467, 117 S.Ct. 1544.

III. Conclusion

20
For the foregoing reasons, we DISMISS Mr. Edgar's direct appeal, refusing to reach the ineffective assistance of counsel argument and holding that the district court's failure to satisfy the requirements of Rule 11(b)(1)(N) did not constitute plain error.

Notes:

1
 Numerous courts have recognized the vital role that the Rule 11 colloquy plays in ensuring that a defendant voluntarily and knowingly enters into a plea agreementSee, e.g., United States v. Vonn, 535 U.S. 55, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002) ("[R]ule [11 is] meant to ensure that a guilty plea is knowing and voluntary"; it achieves this purpose "by laying out the steps a trial judge must take before accepting such a plea."); United States v. Reyes, 300 F.3d 555, 558 (5th Cir.2002) ("Rule 11 ensures that a guilty plea is knowing and voluntary by requiring the district court to follow certain procedures before accepting such a plea."); United States v. Teeter, 257 F.3d 14, 24 (1st Cir.2001) ("In explicating the rationale for adopting [Rule 11(b)(1)(N)], the advisory committee made it pellucid that such an inquiry, properly performed, offers considerable assurance of the defendant's knowledge and volition.").

2
 This is the first time since its passage that we have addressed how we review Rule 11(b)(1)(N) errors in a binding, published opinionUnited States v. Rubio, 231 F.3d 709 (10th Cir.2000), while published after the enactment of Rule 11(b)(1)(N), reviewed a plea entered into prior to the enactment of the Rule. In United States v. Chavez-Salais, 337 F.3d 1170 (10th Cir.2003), we reviewed a plea agreement pursuant to contract principles to determine whether the plea waived the right to modify the sentence pursuant to 18 U.S.C. § 3582(c)(2). Id. at 1172-73. Because Chavez-Salais did not address Rule 11(b)(1)(N) in the context of Vonn, that case only guides us as to whether the error affected substantial rights.

3
 We take this moment to remind district courts to perform vigilantly their duties under Rule 11. Strict compliance with the requirements of Rule 11 conserves judicial resources and offers the best mechanism to ensure that defendants understand their situation. This is especially true with appellate waivers, because these waivers will, in most instances, prevent defendants from bringing issues to the attention of an appellate court

4
 This is not to say that we foreclose other grounds for finding prejudice in a future case or that the lack of a knowing and voluntary waiver constitutes prejudice under every conceivable set of circumstances