Friday, February 25, 2005

What are the real ethical issues judges face?

Judge Alex Kozinski offers a very thoughtful discussion of judicial ethics in the Jan.-Feb. 2005 issue of Legal Affairs ("The Appearance of Propriety").

The canons of judicial ethics are often concerned with the appearance of impropriety -- like judging in a case where you own a few shares of stock of one of the corporations involved. But Judge Kozinski says the danger of being swayed by the prospect of stock dividends (in small amounts) is nothing next to the "hidden" ethical questions judges face, such as:

  • work allocation -- does a judge devote enough attention to each case, even the "small" ones?
  • work delegation -- does a judge hand over too much of the judging to staff attorneys and clerks?
  • ambition -- would a judge be tempted to decide a hot case one way in order to get publicity? how about deciding cases in a way that will make it more likely for the President to nominate the judge for a higher position?
  • doing justice versus applying the law -- should a judge ever bend the law to serve justice?

The piece in Legal Affairs was adapted from a longer article: Alex Kozinski, The Real Issues of Judicial Ethics, 32 Hofstra L. Rev. 1095-1106 (2004).

Filed in: , ,

Twelve Ways Technology Can Make You a Better Trial Lawyer

Think about the different tasks you need to do -- keep up with the law, manage your caseload, research defendants, prepare for trial, present information at trial, etc. David Swanner offers tips on what technology to use for which purposes: Notes from the (Legal) Underground: Twelve Ways Technology Can Make You a Better Trial Lawyer

Remember that old technology is not necessarily obsolete. Another writer on the same blog posed the question:

When I go to a depostion or a meeting, it's pen and paper I take, not a laptop computer. Am I behind the times?
See the discussion here.

Filed in: , , ,

Wednesday, February 23, 2005

Can a lawyer hire a former jury member as an adviser after a mistrial?

That's the ethical question discussed by Prof. William H. Simon in his "Prudent Jurist" column in a recent issue of Legal Affairs. Legal Affairs - The Prudent Jurist

Filed in: , ,

Jury trials in Russia

Russia had no juries between the Bolshevik Revolution and the mid 1990s. Here's a short article discussing the experience today: Legal Affairs - Rundown Jury

Filed in: , ,

Legal Affairs - Crash Course

Legal Affairs recently visited a seminar on accident reconstruction. Here's a short article about the meeting of detectives and engineers. Legal Affairs - Crash Course

Filed in:

Tuesday, February 22, 2005

Bush Signs Class-Action Changes Into Law (

On Friday, President Bush signed the Class Action Fairness Act of 2005. It makes federal courts the only courts with jurisdiction over many class actions. Under many circumstances, actions filed in state courts may be removed to federal court.

The district court may decline to exercise jurisdiction when at least 1/3 of the plaintiffs AND the primary defendants are citizens of the state in which the action was brought. The district court WILL decline to exercise jurisdiction when 2/3 of the plaintiffs AND the defendant's headquarters are in that state.

The law (Pub. L. 109-2) began as S. 5. (pdf).

Washington Post article: Bush Signs Class-Action Changes Into Law (

Filed in: , ,

Friday, February 18, 2005

Contemporaneous objection rule in depositions -- still a good idea?

"The time has come to eliminate the contemporaneous objection requirement for depositions."

E. Stewart Moritz, The Lawyer Doth Protest Too Much Methinks: Reconsidering the Contemporaneous Objection Requirement in Depositions, 72 U. Cin. L. Rev. 1353, 1353 (2004), available on LexisNexis , Westlaw, and Hein Online.

(I always like it when a law review article gets directly to the point.)

Fed. R. Civ. P. 32(d)(3)(B) (which is the same as Washington's CR 32(d)(3)(B)) provides that parties waive any errors in the manner of taking a deposition, the form of the questions or answers, the conduct of the parties, and so on, unless they object at the time.

The author traces the history of deposition rules, concluding that the contemporaneous objection rule is a vestige of pre-Rules common law. It is more suited, he says, to "the use of depositions as a testimony-preservation, rather than a fact-discovery device" (p. 1403) -- which is the more common modern use of depositions.

Filed in: , , ,

Wednesday, February 16, 2005

Initiatives on health care litigation

Two initiatives currently before the legislature address health care litigation. Among other things, Initiative 330 would limit noneconomic damages and contingency fees. Among other things, Initiative 336 changes the requirements for initiating med mal lawsuits.

The February issue of the KCBA Bar Bulletin has opinion pieces:

  • Pro I-330 by Mary Spillane of Williams, Kastner & Gibbs PLLC. She is one of the attorneys representing the Washington State Medical Association in connection with I-330.
  • Pro I-336 by Karen K. Koehler, of Stritmatter Kessler Whelan Withey Coluccio. She is WSTLA’s Second Vice President of Legislative Steering.

Other information:



Note: this post was updated on 3/7/05 to reflect the changes in the URLs for the Bar Bulletin articles.

Filed in: , ,

Tuesday, February 15, 2005

Famous Trials website - Prof. Douglas Linder

For almost 10 years Prof. Douglas O. Linder (UMKC School of Law) has been building a rich and fascinating collection of essays, images, and primary documents on famous trials. Famous Trials - UMKC School of Law - Prof. Douglas Linder

Susan B. Anthony, Black Sox, Sacco and Vanzetti, the Rosenbergs, Lenny Bruce, Scottsboro, John Hinckley, McMartin Preschool -- these are just a few of the trials profiled, with pictures, trial transcript excerpts, timelines, and more.

Interested in transcripts of famous trials in print? See this article from last year's Crier highlighting some of the books on our collection.

Filed in: , ,

PC-CRASH evidence inadmissible under Frye (in this case)

Two men were riding in a new BMW Z-3 convertible when it crashed into a mailbox and a tree. Both men were thrown from the car. One was killed; the other sustained serious injuries (including permanent brain damage). The survivor -- who was also the car's owner -- was prosecuted for vehicular homicide.

But was he the driver? He said he wasn't -- in fact, he said, his gout had made him unable to drive a manual transmission on the fateful day.

The state's expert witness used accident-reconstruction evidence that had been generated by use of the PC-CRASH computer program to show that he was the driver.

Division 1 reversed and remanded, holding that PC-CRASH did not satisfy the Frye test for this purpose -- analyzing multiple-occupant movement within a vehicle during a multiple-collision accident. State v. Sipin, --- P.3d ----, 2005 WL 341703 (Wash. App. Feb. 14, 2005) Find Result - 2005 WL 341703. The court distinguished State v. Phillips, 123 Wash.App. 761, 98 P.3d 838 (Wash. App. Div. 2, Oct. 5, 2004), because PC-CRASH was used in that case for a different purpose: analyzing the movement of a vehicle (not two bodies) in a single-collision accident.

Filed in: , , ,

Monday, February 14, 2005

Career advice from a Texas litigator

Knox D. Nunnally, a big firm trial lawyer with years of experience (since 1968 - you do the math), offers career advice in Good Advice, Hard Knocks Teach Trial Lawyer Skills, Texas Lawyer, Jan. 5, 2005 (reprinted on his firm's website).

Filed in: ,

Friday, February 11, 2005

Protection order victim identified -- hearsay? business records?

A court issues a protection order directing David to have no contact with his former girlfriend, Cara. A few weeks later, two police officers respond to a report of a trespass. On the way, they learn about the protection order. When they get to the apartment, the woman who answers the door says she is Cara. They look and find David hiding in the back bedroom.

OK, here's the interesting part. Cara doesn't testify at trial, but the prosecution must prove that David had contact with Cara, not someone else. Can the police testify that the woman at the door said she was Cara? The trial court said: yes, to show why the officers searched the apartment, but not to prove that she was Cara. During a recess, the police obtained pictures of Cara from jail booking records so they could testify about her identity. Can the records be admitted? The trial court said yes.

Division 3 affirmed, with an interesting discussion of the business records exception to the hearsay rule. State v. Iverson, 2005 WL 291534 (Wash. App. Feb. 7, 2005) (unpublished) Find Result - 2005 WL 291534.

Filed in: , , ,

Thursday, February 10, 2005

Maid to coworker to motel owner to police: chain of custody problem?

A maid who found a baggie of what turned out to be methamphetimine gave it to a coworker, who gave it to the motel owner, who called the police. The motel guest in that room -- who was subsequently convicted of possession -- challenged the chain of custody. The trial court admitted the evidence. Division 3 affirmed. State v. Fridley, 2005 WL 225390 (Wash. App. Feb. 1, 2005) (unpublished).

Filed in: , ,

Wednesday, February 9, 2005

Bill to increase state district court jurisdiction

Currently district courts have jurisdiction over many civil cases where the amount at issue does not exceed $50,000 (RCW 3.66.020). S.B. 5322 (introduced Jan. 20, 2005) would increase that amount to $75,000.

Filed in: ,

Tuesday, February 8, 2005

Child hearsay in; "expert" testimony out

A nine-year-old told her father that her step-grandfather had been touching her sexually. She then told her mother and a police sergeant. The girl testified at trial. The step-grandfather moved to exclude the testimony of the three adults, arguing that "the repetitive and cumulative hearsay overemphasized [the girl's] trial testimony and aroused an emotional, rather than rational, response from the jury."

On appeal, Division 3 observed that child hearsay is admissible under the circumstances (see RCW oA.44.120). But was it prejudicial under ER 403? No, it was not an abuse of discretion for the trial court to admit it.

A physician's assistant who had examined the child testified that he found no physical evidence of sexual abuse, but that sexual abuse was "probable." He based his opinion on a published diagnostic method for child abuse that scores abuse as "probable" if the child's report is clear, concise, explicit, and detailed.

Was this opinion admissible expert testimony? Division 3 held not. The diagnostic method does not satisfy the criteria of Frye. Moreover, admitting the testimony "usurped the exclusive function of the jury to weigh the evidence and determine credibility. It was not harmless error."

State v. Dunn, --- P.3d ----, 2005 2WL 249236 (Wash. App. Feb. 3, 2005).

Filed in: , , , , , , ,

Monday, February 7, 2005

The Vanishing Trial - symposium issue

Is the trial an endangered species in our courts? Are the number of trials declining and, if so, why? And should we care?

The American Bar Association Section of Litigation undertook a major project to answer these questions under the leadership of the Section's Civil Justice Initiative, chaired by Professors JoAnne Epps of Temple University, Steve Landsman of DePaul University, and Bob Sayler of the University of Virginia. "The Vanishing Trial" project is the largest single initiative the Section has ever funded. We set out to document, and then to analyze, what many of us knew anecdotally from our own practices that old-fashioned trials are an increasingly rare beast.

Thus begins Patricia Lee Refo's introduction to a symposium issue of The Journal of Empirical Legal Studies on "the vanishing trial," with fifteen articles looking at the issue from various angles (e.g., federal courts, state courts, federal bankruptcy courts; appeal rates; summary judgment rates). For the table of contents -- with links to abstracts and articles -- see J Empirical Legal Studies, Vol 1, Issue 3: Table of Contents.

Filed in: , , ,

Friday, February 4, 2005

Evidence bills

The legislature is considering some bills that would affect evidence rules:

HB 1508 creates a hearsay exception "against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."

HB 1207 (introduced Jan. 18) and SB 5133 (introduced Jan. 14) would change the rules about privileged communications between spouses. The existing law says that a wife has to consent to her husband's testifying -- and vice versa -- but the amended law would say that a husband can testify against his wife as long as he consents himself -- and the same for the wife. The Senate Judiciary Committee bill report summarizes the bill and the testimony for and against (who do you expect to line up on either side?). See also the bill analysis from the House Judiciary Committee.

Filed in: , , ,

Blood alcohol bill

Washington House Bill 1199 (introduced Jan. 18) concerns testing for blood alcohol content after fatal accidents. One section provides that anyone who operates a vehicle (car, bus, boat, airplane) in the state "is deemed to have given consent" to a test if the person is involved in a vehicle accident in which there has been a fatality. The test would be administered by officers at the scene of an accident; hospitals are also required to report tests given to people who are treated after a fatal accident. The state patrol would tabulate and analyze results.

Filed in: , ,

Thursday, February 3, 2005

Eyewitness identification case in 9th Cir.

United States v. Beck, 393 F.3d 1088 (9th Cir. Jan. 5, 2005) addresses the admissibility of eyewitness testimony.

(1) Was a photo spread improperly suggestive?

Three witnesses had described the bank robber: (a) a white male, about six feet tall, thin, in his mid-thirties, clean-shaven, with framed prescription glasses and black, curly, shoulder-length hair. (b) male, white or Native American, twenty-five to thirty years old, approximately six feet tall, with full, neatly cut, black hair. (c) male, possibly Hispanic or Filipino, in his mid-twenties, about five feet, ten inches tall, with black, wavy, collar-length hair. The photospread showed six white men with dark hair and glasses, all but one clean-shaven. The court held that it was not improperly suggestive.

(2) Should the court have excluded testimony by the defendant's probation officer?

The officer identified the man in the bank's surveillance photo as the defendant. The trial court allowed him to testify, but without indicating that he was the defendant's probation officer (which would of course had let the jury know that the defendant had a criminal record). Instead the officer said that he had "a professional relationship" with the defendant. Held: no abuse of discretion for district court to admit this as lay opinion testimony under FRE 701.

Filed in: , , , , ,

Wednesday, February 2, 2005

The scoop on court reporters

Who can be a court reporter? Are there standards for transcripts? Are court reporters regulated?

The Jan. 2004 Washington State Bar News included A Primer for Attorneys: The Rules and Regulations Applicable to Washington Court Reporters and the Transcripts They Produce, by Susan Colard, program manager at the Department of Licensing's Court Reporter Section in Olympia.

Filed in:

Tuesday, February 1, 2005

King County Clerk's Office Guide

The Jan. 2005 issue of the King County Bar Association Bar Bulletin has a guide to the King County Clerk's Office by Judge Jim Doerty. Note that there is a small correction.

The Clerk's Office is updating the guide, which will probably be on the Clerk's website later this month.

[2/16: I updated the URL for this article. When KCBA posts an issue, each article has "current" in the URL, and then the next month the URLs change. -- Mary]

Filed in: , , ,

"There are very few cases in which you're going to get more evidence of guilt ..."

In State v. Trout, 2005 WL 147717 (Jan. 25, 2005), Division 3 analyzed a prosecutor's closing argument against a claim of prosecutorial misconduct. (It also considered sufficiency of the evidence and voluntariness of a confession, but this is a trial ad blog.)

Here are passages from the argument:

"There are very few cases in which you're going to get more evidence of guilt than you're gonna get in this case. If this isn't enough evidence to convince you beyond a reasonable doubt then I'd submit to you there are gonna be very few cases where anybody could be convinced beyond a reasonable doubt."

"Justice demands guilty verdicts. I trust, I know you'll do the right thing. Any other outcome is unjust. It's unjust by the law, and I know you'll return guilty verdicts on all counts against the defendant."

What do you think? Personalizing? Characterizing the evidence? Prejudicial? Could the remarks be cured by instructions?

Either way you go, you won't be alone: there's a strong dissent.

Filed in: , ,