Thursday, August 7, 2014

Conflicts Among Wash. Court of Appeals Divisions

Unlike the federal circuits, the Washington Court of Appeals is a "unitary system"—one court that sits in three divisions, not three separate courts. But sometimes panels from two divisions disagree with each other, so there can be conflicting precedent. What's a trial judge to do? And how should counsel frame their arguments to the trial court?

Learn more about the problem and possible solutions in: Mark DeForrest, In the Groove or in a Rut? Resolving Conflicts Between the Divisions of the Washington State Court of Appeals at the Trial Court Level, 48 Gonz. L. Rev. 431 (2013).

Map of Washington Court of Appeals divisions from Washington Courts website
For practical help on working with precedent in Washington, see Kelly Kunsch, Stare Decisis—Everything You Never Realized You Need to Know, 52 Wash. St. B. News, Oct. 1998, at 31, HeinOnline

Friday, June 20, 2014

Ethics of Advising Marijuana Users and Businesses

Under RPC 1.2(d), a "lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal . . ."  Does this cover lawyers advising clients under Washington's new marijuana law, when possession is still a crime under federal law?



To address this, the Washington Supreme Court is considering a new comment to RPC 1.2:

Special Circumstances Presented by Washington Initiative 502
[18]  At least until there is a change in federal enforcement policy, a lawyer may counsel a client regarding the validity, scope, and meaning of Washington Initiative 502 and may assist a client in conduct that the lawyer reasonably believes in permitted by this initiative and the statutes, regulations, orders and other state and local provisions implementing them.
Anyone may comment on the proposal and, as the court receives comments, you can read what others have sent.



You can sign up here to get email notifications of proposed court rule changes. You can also sign up for new opinions, caseload reports, and other information from the Washington Courts.

Wednesday, May 21, 2014

Perceptions of Justice—Olympia, June 9

The Washington State Minority and Justice Commission presents a half-day program, Perceptions of Justice, reviewing a report on Washingtonians' perceptions of how they are treated by the police and the courts.

June 9, 2014, 8:45 a.m.-noon
OB2 Auditorium DSHS, 115 Washington Street SE, Olympia
Registration is free and lunch is provided.
Email cynthia.delostrinos[at]courts.wa.gov with "Perceptions of Justice" in the subject line.
3 CLE credits
Speakers are:
  • Don Stemen, from Measures for Justice, a national organization working on ways to measure how well or poorly justice systems are performing basic legal services and then advocating to use the data to improve systems. Stemen is also on the faculty of the Dept. of Criminal Justice and Criminology at Loyola Chicago. His profile includes a list of recent publications.

  • Mark Peffley, Jon Hurwitz, and Jeffery Mondak, researchers for Justice in Washington report, which was commissioned by the Minority and Justice Commission.

    • An advance copy of the report is available on the Washington Defender Association's website: Part 1 (General Descriptive Report on the "Justice in Washington State Survey, 2012") (Oct. 1, 2012), Part 2 (Justice in Washington State Survey, 2012: Analysis of Results, 2nd Report) (rev. March 24, 2014)

    Justice in America cover

Adolescent Brain Development & Juvenile Justice

The Washington Supreme Court hosted "Looking to the Future: Adolescent Brain Development and the Juvenile Justice System" May 20, 2014. The symposium materials are here.

Monday, April 28, 2014

Can Lawyers Look up Jurors on Social Media

Is it permissible for a lawyer to look for information about jurors on social media? A new ABA ethics opinion (Formal Opinion 466) says yes (subject to local rules and court orders)—but lawyers shouldn't ask to connect with the jurors. See this article from ABA Journal online (April 24, 2014).

19th century cartoon of jury with Twitter, Facebook, Instagram, and Blogger logos over faces

Graphic: Drawing of jury by Charles Edmund Brock taken from: Thomas Hood, Humorous Poems ... With a preface by A. Ainger, and ... illustrations by C. E. Brock. L.P (1893); available in the British Library's Photostream here. Blogger, Facebook, Instagram, LinkedIn, and Twitter logos added by Mary Whisner.

Friday, March 28, 2014

What Makes Lawyers Happy?

What makes lawyers happy? Apparently people want to know, because an article on that topic was the most downloaded paper on SSRN last week. You can read it yourself:



Lawrence S. Krieger & Kennon M. Sheldon, What Makes Lawyers Happy? Transcending the Anecdotes with Data from 6200 Lawyers, 83 Geo. Wash. U. L. Rev. (forthcoming 2015), available at http://ssrn.com/abstract=2398989.
Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory.
Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction.
Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.
(emphasis added)

Graphic: original drawing by Mary Whisner, photograph by Grace Feldman, Civil Procedure Hornbook by Friedenthal, Kane, and Miller

How Damaging Is a Prior Conviction as Impeachment in a Civil Trial?

Kathryn Stanchi & Deirdre M. Bowen, This is Your Sword: How Damaging are Prior Convictions to Plaintiffs in Civil Trials?, 89 Wash. L. Rev. (forthcoming 2014), http://ssrn.com/abstract=2412110:

The conventional wisdom in law is that a prior conviction is one of the most powerful and damaging pieces of evidence that can be offered against a witness or party. In the legal lore, prior convictions seriously undercut the credibility of the witness and can derail the outcome of a trial. This paper suggests that may not always be true.

This paper details the results of an empirical study of juror decision-making that challenges the conventional wisdom about prior convictions. In our study, the prior conviction evidence did not have a direct impact on the outcome of the civil trial or the credibility of the witness with the conviction. Moreover, we tested prior conviction evidence with a white witness and an African-American witness and saw no difference in results.

The prior conviction evidence did, however, change the trial in a substantial, but indirect, way. Rather than the direct effect on outcome that we might have expected, the introduction of the prior conviction evidence changed the mental decision-making process of the jurors. Specifically, the evidence seemed to subconsciously lead the jurors to conclude that to decide liability, they had to believe one party over the other. The prior conviction evidence thus turned the trial into a zero sum credibility contest in which believing the plaintiff’s story meant disbelieving the defendant’s (and vice versa). This “zero sum” effect did not appear in the control version of the trial.

In sum, the results of our experiment suggest that while prior convictions are highly noticeable and powerful pieces of evidence, they may not always be the bane that lawyers think they are. Nevertheless, the introduction of this evidence has the potential to change a civil trial by changing the juror decision-making process.

Alaska Bill Would Allow Jury Nullification

A House bill promoting the notion that jurors can ignore Alaska's criminal code and let a lawbreaking defendant off the hook had a brief hearing Wednesday in the House Judiciary Committee, then was held for later. The bill, fostering "jury nullification," has been a bipartisan favorite of some Fairbanks-area House members, with identical versions introduced in 2002 and 2009.
Richard Mauer, House bill pushed by Fairbanks lawmakers promotes ‘jury nullification', Anchorage Daily News, March 26, 2014.




H.B. 315 is here. The bill information page has more links. The sponsor, Rep. Tammie Wilson, states:
Before one is able to understand why jury nullification is a good idea, one must understand the importance of a trial by jury. Our Founding Fathers considered them to be a powerful weapon in the war against tyranny. Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet imagined by man, by which a government can be held to the principles of its constitution”. In the Federalist Papers, Alexander Hamilton wrote that trial by jury was the “very palladium of free government” and a “valuable check upon corruption”.  
Given the strength of these opinions, then, it is no surprise that the denial of trials by jury was one of the foremost acts of despotism listed by Thomas Jefferson in the Declaration of Independence.  
As for the concept that juries have not only the power but the obligation to nullify unjust rulings of a judge, John Adams wrote, “It is not only (the juror’s) right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court”.  
Our Founding Fathers zealously defended this right and recognized that only an informed and empowered jury could effectively protect a defendant from the potentially harmful effects of autocratic judges. Jury nullification allows citizens to have the final say on what is fair in a court of law.  
Therefore, I ask for your support of HB 315. Jury nullification is a good idea and one supported by Constitutional principles of freedom.
Jur-E Bulletin from the National Center for State Courts reports:
The state attorney general's office opposes the bill, indicating it would lead to “unfair and disorderly trials.”  Additionally, Doug Gardner, director of the Legislature's legal services division wrote a memo which expressed concern that the bill may not comply with U.S. Supreme Court precedent that "it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence."  Additionally, he wrote another memo comparing the provisions in House Bill 315 to New Hampshire Revised Statute 519:23-b, which is New Hampshire’s statutory authority for jury nullification.  

The Fiscal Note Analysis prepared by the Department of Law includes some interesting commentary.  It states:
Passage of this bill would result in more cases brought to trial by jury because even though the offender does not dispute that he or she broke the law, the offender could argue for the jury not to follow the law.

Wednesday, March 26, 2014

Rap Lyrics as Evidence in a Criminal Case

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

Two professors argue that rap lyrics should be entitled to protection as artistic expression. Erik Nielson & Charles E. Kubrin, Rap Lyrics on Trial, N.Y. Times Jan. 13, 2014.

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

This reminds me of an article Prof. Helen Anderson wrote several years ago: The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899-943 (2005).

Juvenile Justice Resources

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.

Models for Change logo (subtitle: Systems Reform in Juvenile Justice)


Models for Change selected four strategic states "for their leadership and commitment to change, geographic diversity, differing needs and opportunities, and likelihood to influence reforms in other locations." The states are Illinois, Louisiana, Pennsylvania, and Washington. Within our state, five projects are underway in six counties (Benton and Franklin, Clark, King, Pierce, and Spokane). Our state's projects are coordinated by the Center for Children & Youth Justice.

Top 5 Things to Look for in a Legal Job

How do you figure out what sort of job to look for? Experienced lawyers and law teachers Jennifer Fan and Deborah Maranville say the main focus shouldn't be on the substantive area (bankruptcy vs. environmental law, for instance). Instead consider

  • people
  • tasks
  • case or project features
  • demands
  • rewards
Top Five Things to Look for in a Legal Job: People, Tasks, Case/Project Features, Demands & Rewards is available on SSRN.

What Female Attorneys Should Wear to Court

Slate's Amanda Hess observes Female Lawyers Who Dress Too "Sexy" Are Apparently a "Huge Problem" in the Courtroom (March 21, 2014).

Maureen HowardFor a deeper look at this issue, see Prof.
Maureen Howard's article, Beyond a Reasonable Doubt: One Size Does Not Fit All When It Comes to Courtroom Attire for Women, 45 Gonz. L. Rev. 209 (2010).

Does Allocution Make a Difference?

The new issue of the Alabama Law Review has an article reporting the results of a survey of federal district judges about allocution in sentencing:

Mark W. Bennett & Ira P. Robbins, Last Words: A Survey and Analysis of Federal Judges' Views on Allocution in Sentencing, 65 Ala. L. Rev.  735 (2014)

Allocution—the penultimate stage of a criminal proceeding at which the judge affords defendants an opportunity to speak their last words before sentencing—is a centuries-old right in criminal cases, and academics have theorized about the various purposes it serves. But what do sitting federal judges think about allocution? Do they actually use it to raise or lower sentences? Do they think it serves purposes above and beyond sentencing? Are there certain factors that judges like or dislike in allocutions? These questions—and many others—are answered directly in this first-ever study of judges’ views and practices regarding allocution.

The authors surveyed all federal district judges in the United States. This Article provides a summary and analysis of the participants’ responses. Patterns both expected and unexpected emerged, including, perhaps most surprisingly, that allocution does not typically have a large influence on defendants’ final sentences. Most of the judges agreed, however, that retaining this often-overlooked procedural right remains an
important feature of the criminal-justice process.

Friday, March 21, 2014

Tuesday, March 4, 2014

Juvenile Justice Resources

The Models for Change initiative "supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process." Models for Change is supported by the MacArthur Foundation.

Models for Change logo (subtitle: Systems Reform in Juvenile Justice)


Models for Change selected four strategic states "for their leadership and commitment to change, geographic diversity, differing needs and opportunities, and likelihood to influence reforms in other locations." The states are Illinois, Louisiana, Pennsylvania, and Washington. Within our state, five projects are underway in six counties (Benton and Franklin, Clark, King, Pierce, and Spokane). Our state's projects are coordinated by the Center for Children & Youth Justice.

Twelve more states are involved in the Models for Change initiative through the Action Networks. (The four core states participate in all Action Networks.)
So there's a lot going on in a lot of places. One more component is sharing information.

The Natural Resource Bank is a group of "16 leading national juvenile justice research, reform, and advocacy organizations that provide expert advice, training, and technical assistance to the core states and action network sites."

Resource Center Partnership log

Recently Models for Change launched a Resource Center Partnership, in which four different groups  focus on four areas to "provide administrators, practitioners and policymakers with technical assistance, trainings, and proven tools and resources."
If you're interested in juvenile justice issues, wander through these websites: you'll find a wealth of reports describing problems and describing and evaluating projects that seek to alleviate them.

Tuesday, February 18, 2014

Measuring Criminal Defense Attorneys' Competence

If you were running a public defender office, wouldn't you want to know which lawyers were getting the best results for the clients? And how you could help lawyers improve their results? Here's an interesting paper not only speculating about the possibility but looking at actual data from the North Carolina courts:
Ronald F. Wright & Ralph A. Peeples, Criminal Defense Lawyer Moneyball: A Demonstration Project, Wake Forest L. Rev. (forthcoming), available at http://ssrn.com/abstract=2190570:

The book and movie “Moneyball” portray the iconoclastic general manager of a baseball team. When drafting new players, this GM de-emphasized the insights of baseball scouts as on-the-scene evaluators of a player’s talents, and looked instead to statistical measures of player quality. We take this idea from baseball into the criminal courts. In this article, we argue that criminal defense organizations could meaningfully evaluate the skills of their attorneys through the use of metrics, rather than relying so heavily on the in-person observation of their work in the courtroom. Statistical performance-based rankings could support better leadership in defense attorney organizations.  
Rather than simply assert that a rating system is possible, we attempt in this paper to show its feasibility. We employ data from the North Carolina courts as a demonstration project to illustrate how an office might develop a rating system for the attorneys who work there. Our attorney ratings are based on the bottom line: sentencing reductions those attorneys achieve for their clients, principally through plea negotiations. We then use our tentative quality ratings to address the question of structural causes. What makes one attorney noticeably more or less effective than the typical defense lawyer? Our most surprising discovery is that experience actually has a negative correlation with performance after the first eight years: the more time an attorney has spent in the profession, the more likely that her clients will obtain a more severe sentence. We close with some reflections on other potential users of a statistical rating system, concluding that managers of defense organizations are better situated than judges, prosecutors, or clients to make wise use of ratings data.

Wednesday, January 29, 2014

Predicting Erroneous Convictions

What causes criminal trials to go wrong? This new article attempts to answer: Jon B. Gould et al., Predicting Erroneous Convictions, 99 Iowa L. Rev. 471 (2014)

ABSTRACT: The last thirty years have seen an enormous increase not only in exonerations of innocent defendants but also academic scholarship on erroneous convictions. This literature has identified a number of common factors that appear frequently in erroneous conviction cases, including forensic error, prosecutorial misconduct, false confessions, and eyewitness misidentification. However, without a comparison or control group of cases, researchers risk labeling these factors as “causes” of erroneous convictions when they may be merely correlates. This Article reports results from the first large-scale empirical research project to compare wrongful convictions with other innocence cases in which the defendant escaped conviction (so-called “near misses”). Employing statistical methods and an expert panel, the research helps us to understand how the criminal justice system identifies innocent defendants in order to prevent erroneous convictions. In another first, the research secured the cooperation of practitioners from multiple sides of the criminal justice system, including the national Innocence Project, the Police Foundation, the Association of Prosecuting Attorneys, and the National District Attorneys Association. The results highlight ten factors that distinguish wrongful convictions from near misses, but the larger story is one of system failure in which the protections of the criminal justice system operate in a counterintuitive manner. The Article closes with a series of policy reforms to address these failings.

Rap Lyrics as Evidence of Crime

Should a jury hear (or read) violent lyrics written by a criminal defendant? Even if they were written years before the crime? The issue has come up in a number of cases, including one that was recently argued in the New Jersey Supreme Court (State v. Skinner).

Two professors argue that rap lyrics should be entitled to protection as artistic expression. Erik Nielson & Charles E. Kubrin, Rap Lyrics on Trial, N.Y. Times Jan. 13, 2014.

The lower judges disagreed: the majority remanded, holding that the admission of the lyrics was prejudicial; a dissenter would have upheld the admission of the lyrics, finding that the trial judge appropriately applied New Jersey's four-part test for admission of extrinsic "bad-act" evidence. State v. Skinner, No. A-2201-08T2 (N.J. Super. Ct. App. Div. Aug. 31, 2012). The opinions offer extensive analysis and factual context. The ACLU of New Jersey's amicus brief is here link to the organization's amicus brief.

While we Seattleites can be proud of our hometown rappers Macklemore and Ryan Lewis who won four Grammys and are white, it is clear that attitudes toward rap are tied to attitudes about young black men. Some commentary by bloggers and two radio programs:

This reminds me of an article Prof. Helen Anderson wrote several years ago: The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899-943 (2005).

Monday, January 20, 2014

Jurors Have a Hard Time Resisting Call of the Web

After a five-week trial, Judge Mary E. Roberts

Judge Mary E. Roberts (UW Law '84)
Photo from King County Superior Court
faced a tough decision: after learning that the jury foreman defied her instructions not to research legal issues on the Web, should she let the verdict stand or declare a mistrial?

The juror had looked up the penalty for first-degree rape—but in criminal trials, the juror is supposed to focus on the definition of the crime, not the penalty. The judge decided that the jury had been sufficiently tainted by the juror's action that a new trial was warranted.

The Seattle Times has a long story about this case and the nationwide issue of jurors leaving the jury room via wireless technology. Ken Armstrong, Case of the Curious Juror: When the Web Invades the Courtroom, Seattle Times, Jan. 18, 2014.

As people increasingly carry around Internet access in their pockets and reflexively look up actors on IMDb, rate restaurants on Yelp, and settle trivia disputes with a quick look at Wikipedia, the use of the web by jurors has challenged judges, advocates, and parties nationwide.

The Washington Courts created (with private funds) a poster for jury rooms reminding jurors to "FOCUS ON THE COURTROOM." (Here's the press release about it.)
Washington Courts poster
Jury instructions include cautions about outside research. See WPI 1.01 (civil trials) and WPIC 1.01 (criminal trials):
It is essential to a fair trial that everything you learn about this case comes to you in this courtroom, and only in this courtroom. You must not allow yourself to be exposed to any outside information about this case. Do not permit anyone to discuss or comment about it in your presence, and do not remain within hearing of such conversations. You must keep your mind free of outside influences so that your decision will be based entirely on the evidence presented during the trial and on my instructions to you about the law.
Until you are dismissed at the end of this trial, you must avoid outside sources such as newspapers, magazines, blogs, the internet, or radio or television broadcasts which may discuss this case or issues involved in this trial. If you start to hear or read information about anything related to the case, you must act immediately so that you no longer hear or see it. By giving this instruction I do not mean to suggest that this particular case is newsworthy; I give this instruction in every case.
During the trial, do not try to determine on your own what the law is. Do not seek out any evidence on your own. Do not consult dictionaries or other reference materials. Do not conduct any research into the facts, the issues, or the people involved in this case. This means you may not use [Google or other internet search engines] [internet resources] to look into anything at all related to this case. Do not inspect the scene of any event involved in this case. If your ordinary travel will result in passing or seeing the location of any event involved in this case, do not stop or try to investigate. You must keep your mind clear of anything that is not presented to you in this courtroom.
For more on the impact of the web on litigation, see these articles by UW Law students from the last few years:
See also the Jurors & Courtrooms page in the Social Media & the Courts section of National Center for State Court.

Want more? Just take out your smartphone and run a search. (But not while you're on a jury.)

Tuesday, December 31, 2013

Free Webcasts from NITA

NITA (the National Institute for Trial Advocacy) offers a free webcast in a couple of weeks: Bad Facts in Your Case? Using theme and theory to tell your story to the factfinder, Jan. 17, 2014, 11 am Mountain (that's 10 am here in Seattle) (NITA is based in Boulder, CO). But wait! There's more! NITA has a couple of dozen Studio71 Webcasts—and many of them are free.
(You can still watch the ones whose dates have passed. You just don't have the live interactive features.)

Free* webcasts include:

  • Fundamentals of Cross Examination, Feb. 11, 2014
  • Three Critical Tools: Impeachment, Refreshment, and Past Recollection Recorded, Jan. 28, 2014
  • Evidentiary Foundations for Social Media Evidence, Dec. 9, 2013
  • How to Use Your Trial Skills to Prepare for Mediation, Nov. 19, 2013
  • Challenging the Admissibility of Forensic Expert Testimony, Oct. 15, 2013
  • Right of Publicity and Privacy, Oct. 2, 2013
  • Making and Meeting Objections in Child Welfare Court Proceedings, Aug. 23, 2013
  • Demo: Expert Witness Examination, June 19, 2013
  • Jury Selection, June 19, 2013
  • Direct Examinations in Child Welfare Court, Nov. 8, 2011
  • Cross Examination
And there are more!

*There are some fee-based webcasts, too, but the free ones should be especially appealing for student budgets. It's pretty exciting to see the shopping cart icon with "0.00"!

screen snip from NITA's list of webcasts

Friday, December 27, 2013

U.S. Chamber Targets "Lawsuit Abuse"

The U.S. Chamber of Commerce is one of the strongest voices decrying what it says is Americans' overreliance on litigation, operating in part through its Institute for Legal Reform (ILR). ILR describes its work:

The U.S. Chamber Institute for Legal Reform (ILR) is the most effective and comprehensive campaign committed to improving the lawsuit climate in America and around the globe.

ILR’s mission is to restore balance, ensure justice, and maintain integrity within the civil legal system. We do this by creating broad awareness of the impact of litigation on society and by championing common sense legal reforms at the state, federal, and global levels.

ILR’s approach is highly aggressive and pragmatic, focused on achieving real change in real time while laying the groundwork for long-term legal reform. ILR’s hallmarks are the execution of cutting-edge strategies and a track record of visible success.
ILR has just released its list of the Top Ten Most Ridiculous Lawsuits of 2013, with a lighthearted YouTube video mocking them.



Of course, the plaintiffs and their attorneys in those suits don't necessarily agree with the Chamber's assessment; a few are quoted in this National Law Journal story.

For a different perspective on civil litigation, see the American Association for Justice's Fighting for Justice pages.

You can also find scholarly assessments of the "litigation explosion," the "malpractice crisis," "tort reform," and so on. Here is a sampling of papers from SSRN:
  • Thornburg, Elizabeth G., Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia (2008). West Virginia Law Review, Vol. 110, No. 3, 2008. Available at SSRN: http://ssrn.com/abstract=1123808
  • Eisenberg, Theodore, U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business (September 9, 2009). Cornell Legal Studies Research Paper No. 09-029. Available at SSRN: http://ssrn.com/abstract=1470872 
  • La Fetra, Deborah, Freedom, Responsibility and Risk: Fundamental Principles Supporting Tort Reform. Indiana Law Review, Vol. 36, p. 645, 2003. Available at SSRN: http://ssrn.com/abstract=699624
  • Hyman, David A. and Silver, Charles, Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid. Vanderbilt Law Review, Vol. 59, p. 1085, 2006. Available at SSRN: http://ssrn.com/abstract=942995
  • Eisenberg, Theodore, The Empirical Effects of Tort Reform (April 1, 2012). Research Handbook on the Economics of Torts, Forthcoming; Cornell Legal Studies Research Paper No. 12-26. Available at SSRN: http://ssrn.com/abstract=2032740

Friday, July 19, 2013

Crime Stats and Google

An economist has been mining Google search data to learn more about crime, particularly for crimes that are underreported. Seth Stephens-Davidowitz, How Googling Unmasks Child Abuse, N.Y. Times, July 13, 2013.

Stephens-Davidowitz writes that another expert said that child abuse and neglect declined during the recession. Great news, right? But Stephens-Davidowitz found that certain Google searches went up, correlating with areas of high unemployment and decreased social services.

After declining for many years in the United States, the searches that seem to have come from abuse victims themselves rose as soon as the Great Recession began. On weeks that unemployment claims rose, these searches rose as well.
He also found higher rates of child mortality due to abuse—deaths due to abuse are less likely to be unreported than abuse itself.

Seth Stephens-Davidowitz's scholarly paper on this study is Unreported Victims of an Economic Downturn, July 12, 2013.

Saturday, July 13, 2013

Witness Testifying Via Skype

Weekend Edition this morning included this:

Witness in Zimmerman Case Testifies by Skype
Two problems arise with the new technology: The witness's testimony in this case was interrupted by pranksters; and appearing via Skype may violate the constitutional right to face your accuser. Weekend Edition Saturday host Scott Simon talks with attorney John Hutchins about using Skype in criminal cases.
Listen here.

Friday, July 12, 2013

Judge Texts Hint to Prosecutor

A judge in Texas thought of a helpful line of questioning for the prosecution and texted a note to another prosecutor, asking her to pass it along to trial counsel. She did, but now regrets it. Judge texted during trial to help state, says ex-prosecutor, ABA Journal News, July 9, 2013.

Wednesday, July 10, 2013

Calling Home Is Expensive

Most prisons charge inmates such high rates that "a phone call from an inmate across town may be ten times more expensive than ringing a friend in Singapore," says the Legal Times blog. Now the FCC might do something about it. The agency is holding a day-long workshop today.  FCC Tackles Cost of Prison Phone Calls, The BLT: The Blog of the Legal Times, July 10, 2013.

It's a big issue for the quality of life of inmates and their families. It also affects access to counsel (defense counsel get hit with big bills accepting calls from clients). And it affects state budgets: a Virginia legislator who wants to reform prison phone rates acknowledges that the state general fund would miss the millions of dollars it has been making from the high rates. "What do we replace the lost revenue with? That's our problem."

Thursday, June 6, 2013

Drug Dogs Going Back to School

cartoon of dog sitting at school deskReflecting the change in Washington State law making it legal for adults to possess small amounts of marijuana and use it in private, some law enforcement agencies are retraining their drug-sniffing dogs not to alert for marijuana.

Local stories include:

The Washington State Criminal Justice Training Commission has standards for certifying dogs with different specialties (patrol, explosives, narcotics). As of January, narcotics dogs will be trained to detect cocaine, crack cocaine, methamphetamine, and heroin, but not marijuana.


The Supreme Court has issued two dog-sniff cases this Term. In Florida v. Harris (Feb. 19, 2013), the Court unanimously upheld the admission of evidence found in a truck after an alert by a trained dog (who had previously been reliable). SCOTUSblog's summary of the case is here. In Florida v. Jardines (March 26, 2013), the Court found that using a drug-sniffing dog on the defendant's front porch was an illegal search. See Adam Liptak, Justices, Citing Ban on Unreasonable Searches, Limit Use of Drug-Sniffing Dogs, N.Y. Times, March 26, 2013.

Narcotics dogs do not always perform accurately. In fact, a study of Chicago-area traffic stops by the Chicago Tribune found that drugs were found in just 44% of the vehicles where dogs alerted—and in only 27% of the vehicles with Hispanic drivers. Dan Hinkel & Joe Mahr, Tribune analysis: Drug-sniffing dogs in traffic stops often wrong, Chi. Tribune, Jan. 6, 2011. An academic study about the same time "found that detection-dog/handler teams erroneously 'alerted,' or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present." Explosive- and drug-sniffing dogs' performance is affected by their handlers' beliefs, UC Davis Health System, Feb. 23, 2011. The paper is: Lisa Lit et al., Handler Beliefs Affect Scent Detection Dog Outcomes, 14 Animal Cognition 387 (2011). 

The current issue of the Oregon Law Review (available free in PDF) is a symposium on drug policy. It includes Jane Bambauer, Defending the Dog, 91 Or. L. Rev. 1203 (2013). The author says "This short essay makes the uneasy case for the narcotics dog. Those in favor of U.S. drug enforcement presumably need no convincing, but this Article intends to address the concerns of skeptics who worry about unjust drug enforcement, or who believe that criminalization is just plain bad policy. Dogs are just the first generation of a new set of law enforcement tools that can help us divorce criminal investigation from the bias and discretion that comes with traditional policing." Id. at 1204.

Washington readers might be particularly interested in Michael Vitiello, Joints or the Joint: Colorado and Washington Square Off Against the United States, 91 Or. L. Rev. 1009 and Michèle Alexandre, First Comes Legalization, Then Comes What? Tips for Washington and Colorado to Help Break the Cycle of Selective Prosecution and Disproportionate Sentencing, 91 Or. L. Rev. 1253.

Graphic: mw

Sunday, June 2, 2013

Crazy—Book About Mentally Ill in the Criminal Justice System

Spurred by his son's mental illness and prosecution for breaking into a neighbor's house while he was delusional, journalist Pete Earley spent two years exploring what happens to mentally ill Americans, particularly those who encounter the criminal justice system. The result is a conassionate, revealing, and disturbing book: Crazy: A Father’s Search Through America’s Mental Health Madness (2006).

Since the national movement to deinstitutionalize people with mental illness in the 1980s, many more people with very serious conditions are living on the margins of society, often on the streets. There are inadequate services available to them—community mental health clinics, sheltered living situations, support groups.

All too often they commit crimes related to their illness and land in jail. There are the headline-making crimes (the gruesome murderof a family), but also a thousand petty crimes. For instance, Earley interview and befriends a man who writes "Jesus 2007" on buildings and walls to announce his belief that Jesus is about to return; the man is repeatedly jailed because of his graffiti. At a bus stop, one woman yells at another, "Stop stealing my thoughts!" and shoves her. The second woman isn't hurt and doesn't want to press charges, but the delusional woman is jailed nonetheless.

Earley spent most of his time in Miami, but tells us that the horrible conditions he observed in the Miami-Dade jail's psych floor are not uniquely bad and could be found in many other places. His sustained reporting in one lhttp://www.peteearley.com/blog/ocation adds depth to the book, because he is able to follow several people from jail to hospital and back. He interviews many other participants in the system too: a reforming judge, a jail psychiatrist, parents in a support group, correctional officers, nurses, and more.

You can read the first chapter on Earley's website. Earley's blog provides updates and commentary on mental health issues. By the way, Earley has this "important note" on his website: "The word 'CRAZY' in the book title refers to the mental health care system."

Saturday, May 18, 2013

Experiences of the Self-Represented

It's tough enough to handle litigation when you're a lawyer, but it's incredibly stressful and daunting when you don't.

CBC's Day Six has a 15-minute story on self-represented litigants (May 18, 2013). It begins with a moving interview of middle-class Vancouver woman who ran out of money for her lawyer about five months and $50,000 into her case. She's well-spoken and well-educated (master's degree) and was still overwhelmed.

Next the host interviews Julie Macfarlane, a law professor who conducted a study of unrepresented litigants in three provinces (BC, Alberta, Ontario). The report: Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants: Final Report (May 2013).

I have just scrolled through the report quickly, but it looks very interesting. Canadians and the Canadian court system are similar enough to US folks and the US legal system that the report is very relevant to our access-to-justice issues.

 Julie Macfarlane teaches law at the University of Windsor. Her faculty bio is here .

Thursday, May 9, 2013

Lawyers Who Defend Accused Terrorists

What's it like to defend a high-profile terrorism defendant? See: Ron Scherer, Lawyers who defend terror suspects have thankless task. Why do they do it?, Christian Science Monitor, April 30, 2013. Tamar Rebecca Birckhead, To Defend a Terrorist: Reflections on Reid, Tsarnaev & How I Got from There to Here, Juvenile Justice Blog, May 3, 2013. Birckhead, now a professor at the University of North Carolina, represented Richard Reid, the so-called "shoe bomber," when she was a public defender.

Thursday, April 4, 2013

Convicting the Innocent

Convicting the Innocent book jacket
You've heard of people who were shown by DNA evidence to be innocent of the crimes they were imprisoned for. How can that happen? What can we learn from it?

Prof. Brandon Garrett (with the help of a team of research assistants) found out all he could about the first 250 DNA exonerations, gathering trial transcripts (when available), news coverage, appellate records, and the records from state post-conviction proceedings and federal habeas cases. Then he mined the data: How many of the exonerated people had confessed falsely? How many had been mistakenly identified by one or more eyewitnesses? How many were prosecuted with questionable forensic evidence (hair analysis, for instance, does not prove much of anything)? How many years did it take from initial conviction to eventual exoneration?

He presents the results in Convicting the Innocent: Where Criminal Prosecutions Go Wrong (KF9756 .G37 2011 at Classified Stacks). The results are disturbing—but can also be instructive.

Monday, March 11, 2013

Public Interest Law Retreat

Interested in public service law? Sign up for the Trina Grillo Retreat, which will be here March 22-23. Friday evening's events are at the Talaris Conference Center and Saturday's workshops are at UW Law. The retreat provides a unique opportunity for law students, faculty and practitioners to exchange viewpoints, explore career opportunities, and formulate creative strategies for social justice.

There will be great content and a collegial environment, with law students and practitioners from the West Coast.

Attending is cheap! Cost to a UW law student (or a student from another consortium law school)? $0. That's right: it's free! Cost to practitioners? Just $25.

Sunday, January 27, 2013

Socrates on Trial—Again

The philosopher Socrates was tried for impiety and corrupting the youth of Athens. He was found guilty and executed in 399 B.C. Next week, he will be tried again—but in Chicago, not Athens.

screen shot of NHM's ad for Trial of Socrates

The Trial of Socrates, organized by the National Hellenic Museum, will feature a lot of legal star power. The presiding judge will be 7th Circuit judge, law professor, and prolific author Richard Posner. You can read or hear an interview with one of the prosecutors, U.S. Attorney Patrick Fitzgerald, here (NPR Weekend Edition, Jan. 26, 2013).

For the history, see The Trial of Socrates, by Prof. Douglas O. Linder. It's just one of many trials for which Linder presents essays, transcripts, images, and more on his Famous Trials site.

Wednesday, December 12, 2012

Mistrial After Everett Juror Does Online Research

A child sexual abuse case resulted in a mistrial after a juror went online to research the  concept of witness coaching and told his fellow jurors. The  prosecutor didn't want to put  the six-year-old victim through a second trial, so reduced the charges to resolve the case. Juror’s ‘research’ forced mistrial in child rape case, Herald.net (Everett), Dec. 12, 2012

The end of  the  article briefly discusses a mistrial that resulted from a juror refusing to return to court after a break in deliberations.

Monday, December 3, 2012

TED Talk on Statistics

Here's another TED Talk:

Peter Donnelly, How Stats Fool Juries, TED Talks (July 2005, posted Nov. 2006).

TED Talk on Eyewitness Testimony

Forensic psychologist Scott Fraser discusses Why Eyewitnesses Get It Wrong, TED Talk (May 2012, posted Sept. 2012). He illustrates his points with slides showing the lighting conditions on the night of a shooting.

Friday, November 30, 2012

Race in the Criminal Justice System — Video from 9th Cir.

African Americans and other people of color are overrepresented in our nation's prisons compared with their numbers in the general population. A large number of factors are involved, including police practices, prosecution, and sentencing.

This year's Ninth Circuit Judicial Conference (a meeting of judges and court staff) included a 90-minute panel on the issue (Aug. 15, 2012). The panel, What Color is Justice: Racial Disparities in the Criminal Process, is available on YouTube.



The moderator, who introduces the topic, is former district judge Nancy Gertner, who now teaches at Harvard Law School. The other speakers are:

For more on this topic, see Bryan Stephenson's TED Talk, We Need to Talk About an Injustice (March 2012) and material cited in our guide, Race in the Criminal Justice System.

Sunday, November 25, 2012

Skype Deposition and Confrontation Clause

An interesting post:

Few cases have the intersection of the Confrontation Clause, witness unavailability, chain of custody, and Skype. Williams v State is one such unpublished opinion from the Indiana Court of Appeals. . . .
Skyping with the Confrontation Clause, Bow Tie Law's Blog, Nov. 19, 2012.

Thursday, November 15, 2012

Law & Order Success Rates

Here's a fun item for fans of the original Law & Order series: David Haglund, Katie Kilkenny, & Holly Allen, Which Law & Order Characters Did Their Jobs Best? The Answer in Five Graphs, Slate, Nov. 14, 2012.

Haven't you always wondered who got a higher percentage of convictions, Jack McCoy or Ben Stone?

Thursday, September 13, 2012

Funding Needed to Keep Federal Civil Trials Running

Federal civil jury trials in the United States probably would grind to a halt if Congress fails to reach a budget deal and $600 billion in automatic spending cuts kick in next year, a leading federal judge said Tuesday.

The federal judiciary's share of the cuts would be more than $500 million if Congress does not reach a budget deal by year's end to prevent some $1.2 trillion in spending cuts and tax increases from kicking in next year, Chief Judge U.S. Circuit Court of Appeals for the District of Columbia said.
Judge: US civil trials at risk without budget deal, Seattlepi.com (AP), Sept. 11, 2012.