Sunday, May 29, 2005

Sharing trial experiences

A couple of months ago, I posted a brief note linking to a trial practice blogger's comment that it would be interesting to see more first-hand accounts of freshly completed trials.

Responding to that idea, Maureen Howard wrote me (in an email message she suggested I post):

There was a formal system at the King County Prosecutor's Office for attorneys to share their educational (or sometimes just maddening) experiences after trials. I found this to be immensely helpful and wonder if we could foster some sort of sharing of trial experience post-trial across law firms and agencies for the benefit of our trial advocacy students as well as members of the bar in general. Although historically this "anecdotal wisdom" has been treated fairly proprietarily and shared just within the walls of individual law firms or agencies, the sharing of such experience is really no different that experienced litigators sharing similar knowledge through formal CLEs, etc...

Perhaps this could be an experiment within an experiment?

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Trial Ad director wins Professor of the Year!

[EVENT] Maureen Howard, the director of the UW's Trial Advocacy Program, was awarded the Philip A. Trautman Professor of the Year Award at last night's Student Bar Assocation Gala. Congratulations, Maureen!

Other professors honored with the Trautman Award were Joel Ngugi (for a 1L class) and Robert Anderson (for a small section upper-level class). Lenny Hom received the Mary A. Starr Staff of the Year Award. Two students received the Charles Z. Smith Public Interest Student of the Year Award: Ibrahim "Saj" Bah and Dustin Yeager. Congratulations, all!

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Friday, May 27, 2005

Opportunity to be heard!

We are beginning to assess the blog experiment. What audience (if any) has it reached? What do readers like and not like? Should we continue it?

An important source of information is a short survey. The survey closes on May 31. If you haven't taken it yet, please take a moment to do so.


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New rule for appointing appellate counsel for indigent defendants

[RULES] Effective July 1 there is a new rule (RAP 15.2) for appointing appellate counsel for indigent defendants. Formerly the superior court appointed appellate counsel; now the appellate court will appoint appellate counsel, from a list designated by the Washington State Office of Public Defense (OPD).

RAP 15.2 -- Appellate Appointment Rule Change Frequently Asked Questions, by OPD, includes this:

What does this mean for trial attorneys?
Trial attorneys will continue to be responsible for filing the Notice of Appeal and the Motion for Order of Indigency. Forms will be included on the OPD website, in addition to the Washington Courts’ website. The order of indigency will provide that the appellate court shall appoint appellate counsel. Trial counsel will still be required to consult with appellate counsel in preparing the record for appeal.
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The Defender Association

[NEWS] The Defender Association's website includes links to news stories and editorials about the the Defender Association and public defense in general. The most recent article is from May 2004 and they go back to 2000. It's not "breaking news" -- but it's a very nice selection of articles about criminal defense issues locally.

[RESEARCH] Scroll down the page for links to some important research, notably the studies on racial disparity in drug law enforcement.

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Wednesday, May 25, 2005

Outstanding Trial Ad Instructors, Outstanding UW Alumni!

[EVENT] At its annual dinner on June 23, the King County Bar Association is honoring:

  • Outstanding Lawyer: Thomas W. Hillier, II, Federal Public Defender -- UW Trial Ad instructor
  • Outstanding Judge: Hon. Robert S. Lasnik, U.S. District Court -- UW School of Law alumnus (class of '78)
  • William L. Dwyer Outstanding Jurist: Hon. Robert F. Utter, Retired -- UW School of Law alumnus (class of '54)
  • Outstanding Young Lawyer: Felix Gavi Luna, Heller Ehrman White & McAuliffe, LLP -- UW Trial Ad Instructor and UW School of Law alumnus (class of '97)

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Tuesday, May 24, 2005

Empirical study of federal civil litigation

[RESEARCH] In Exploring Economic and Democratic Theories of Civil Litigation: Differences Between Individual and Organizational Litigants in the Disposition of Federal Civil Cases, Gillilan K. Hadfield analyzes a large sample of cases from federal courts.

In the abstract, Prof. Hadfield writes:

I endeavor to show the differences between individual and organizational litigants in the rate at which cases are abandoned, defaulted, adjudicated without a trial, adjudicated with a trial, or settled.

The results show substantial differences in cases based, primarily, on plaintiff rather than defendant type. I find individual plaintiff cases are substantially more likely to be determined by an adjudication—especially a non-trial adjudication—than are organizational plaintiff cases. I also find evidence that organizational plaintiffs—against either individual or organizational defendants—are substantially more likely to settle their cases rather than to have them decided either by trial or non-trial adjudication.
The paper is forthcoming in the Stanford Law Review. It may be downloaded now from the link above.

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Monday, May 23, 2005

King County Superior Court clerk honored

[NEWS] King County Superior Court Clerk Barbara Miller has been named Court Manager of the Year. Washington Courts press release. Congratulations!

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Trial over gov's election begins today

[NEWS] The trial over Washington's 2004 governor's election opens today. Here are some links:

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Discovery: Cut Out the Middleman

[TIP] Evan Schaeffer offers a tip to avoid delays in opposing counsel's responses to interrogatories: give notice that you want to depose the corporate representative. The Illinois Trial Practice Weblog: Discovery: Cut Out the Middleman

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Saturday, May 21, 2005

Input needed!! Time to evaluate Trial Ad Notes!

In a couple of weeks, we'll be deciding whether to continue this blog. Your input is important. Is anyone out there reading it? Is it helpful? What do you like and dislike?

Please take this short survey.

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Family Law Pattern Interrogatories

[RULES] Proposed discovery rules (to take effect Sept. 1) in King County Superior Court would limit interrogatories unless there are court-approved pattern interrogatories in a particular area. Currently there are none. The King County Bar Association has a committee working on pattern interrogatories for family law.

For more information, with a link to the proposed interrogatories, see KCBA's statement on Family Law Pattern Interrogatories.

Comments to KCBA are due by May 31.

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Friday, May 20, 2005

Comments to Evidence Rules: who cares?

[RULES] WSBA's Court Rules and Procedures Committee decided at its March 28 meeting to recommend elimination of the Comments to the Rules of Evidence. The Committee's web page states:

A majority of the Committee concluded that the Comments have outlived their usefulness, and in many cases they are inadequate or obsolete. * * * A minority of the Committee's membership felt that the Comments retain some value, particularly as they indicate where Washington's rules differ from the Federal Rules of Evidence. * * *

The Board of Governors is interested in hearing from practitioners on this issue. Do attorneys in litigation actually use the Comments or do they rely on evidence manuals?

Interested people may comment to the committee ( or to a WSBA Governor. The Board of Governors has deferred a vote until its July meeting.

[April 2006 update. I checked the Board of Governors' minutes. The BOG voted unanimously to remove the comments at its meeting July 29-30, 2005.

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Does admission of 911 call violate defendant's confrontation right?

[CASE] The Washington Supreme Court addresses the admissibility of a 911 call when the caller was not present for cross-examination. State v. Davis, --- P.3d ---, 2005 WL 1115865 (Wash. May 12, 2005).

Facts: A woman called 911 and hung up without speaking. The 911 operator called her back. The woman "was hysterical and crying as she responded, 'He's here jumpin' on me again." She told the operator that the defendant had hit her with his fists, that he had just left, and that she had a protective order against him. Police officers responded within four minutes, interviewed the woman, saw her injuries, and observed her conduct.

The prosecutor was unable to locate the woman at the time of trial. The 911 tape was admitted. Defendant was convicted of felony violation of the provisions of a domestic no-conduct order.

The Supreme Court holds admission of the tape was proper (although 911 tapes are not always admissible -- they must be evaluated case by case). Justice Sanders dissents, finding that the conversation in this case was testimonial.

The case also involves a jury instruction issue.

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Wash. Supreme Court clarifies rules for hearsay in sentencing modification hearings

[CASE] The Washington Supreme Court clarifies the standards for admission of hearsay testimony in sentencing modification hearings. State v. Abd-Rahmaan, --- P.3d ---, 2005 WL 1115858 (Wash. May 12, 2005).

Mr. Abd-Rahmaan was serving the community placement portion of his sentence for delivery of cocaine. The state sought to modify his sentence, alleging violations of certain conditions of his community placement. At the hearing, his Community Corrections Officer testified about what he had been told by staff at the day labor organization where Mr. Abd-Rahmaan had worked. The trial court admitted the hearsay and increased the sentence. The Court of Appeals affirmed

After an extensive discussion of Supreme Court and Washington precedents, the Washington Supreme Court summarized:

We reverse the Court of Appeals' decision. While we note that relief for Abd-Rahmaan here is moot because he has already served his time, we issue this opinion to clarify the rule for future sentence modification hearings. We hold that Crawford does not apply in sentence modification hearings. Under Morrissey and Dahl, the right to confront witnesses at sentence modification hearings exists unless good cause is established by the trial court to admit the hearsay evidence. When admitting hearsay on a finding of good cause, trial courts are required to articulate the basis on which they are admitting the hearsay testimony by either oral or written findings in order to facilitate appellate review. While we agree with the Court of Appeals that trial courts should articulate the reasons for admitting hearsay evidence in these hearings, we disagree that the record here is sufficient to review the trial court's reasoning.
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Wednesday, May 18, 2005

Senate Looks at Safety of Judges

[NEWS] The Senate Judiciary Committee today heard testimony from Judge Joan Lefkow (N.D. Ill.), whose mother and husband were killed by a former litigant. NPR has excerpts: NPR : Senate Looks at Safety of Judges. You can read her prepared statement -- as well as the statements of 4 other witnesses -- on the Committee's website.

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Wednesday, May 11, 2005

Take my survey ... please!

Please take a few minutes to take a short survey about this blog.

Original post (May 3): Feedback! Feedback! Feedback!. Survey responses so far: three (1 UW Trial Ad student, 1 student from another law school, 1 legal professional).

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Woman awarded $45,000 in cat death

[NEWS] A woman was awarded over $45,000 in a bench trial in Seattle District Court against a dog owner whose dog mauled her cat to death. The award includes $15,000 for the woman's emotional distress. Woman awarded $45,000 in cat death, Seattle Post-Intelligencer, May 9, 2005. See also Seattle Times story (includes pictures).

The story has received national and international press attention. See, e.g., BBC News World Edition, CNN, Court TV, (Tijuana, Mexico), Stuff (New Zealand)

The plaintiff's attorney was Adam Karp, a UW alumnus who has also taught Animal Law here. Adam was also the first president of WSBA's Animal Law Section.

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Friday, May 6, 2005

Report on Wrongful Convictions in Virginia

[RESEARCH] The Innocence Commission for Virginia has released a new report analyzing seven wrongful capital convictions and proposing reforms. A Vision for Justice: Report and Recommendations Regarding Wrongful Convictions in the Commonwealth of Virginia (March 2005).

According to the press release (March 30):

The ICVA is only the second innocence commission in the United States and the one of the first groups to study a state’s exoneration cases.

The eleven exonerated individuals spent a collective 118 years in prison before being pardoned by Virginia’s governor or released from prison after courts determined their innocence. It required many years, thousands of hours of legal assistance, and huge costs to taxpayers, to secure their release. Meanwhile, the actual perpetrators remained at large and, in some cases, committed additional crimes.

* * *

Said former FBI Director and federal judge William S. Sessions, a member of ICVA’s Advisory Board, “The conviction of an innocent person has broad implications for the criminal justice system. Victims, who have a right to see their victimizers punished, suffer when the wrong person is convicted, then suffer again if the true perpetrator is apprehended and the victims must relive the crime through another trial. And the public’s faith in law enforcement officials and the legitimacy of the criminal justice system is diminished.”
Virginians spent over two million dollars to imprison these innocent men, whose wrongful convictions might have been prevented by the policy recommendations set forth in the ICVA’s report.

The report identifies common problems that led to these eleven wrongful convictions. It calls for reform and highlights measures in seven areas – eyewitness identification, interrogation, discovery, law enforcement investigation, scientific evidence, and defense practices – that would improve Virginia’s criminal justice system and offer the latest and best practices to law enforcement officers, courts, prosecutors, and defense counsel alike.

* * *

The ICVA is sponsored by the Mid-Atlantic Innocence Project, the Administration Justice Program at George Mason University, and the Constitution Project, part of Georgetown University’s Public Policy Institute.
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Thursday, May 5, 2005

Six-year-old competent to testify about abuse when he was three and four

[CASE] Division 2 discusses in some detail the grounds for finding a six-year-old competent to testify in a sexual abuse case against the boy's babysitter. State v. Yackley, 2005 WL 1023146 (Wash. App. May 3, 2005) (unpublished), Find Result - 2005 WL 1023146.

A word on unpublished decisions...
Unpublished opinions can't be cited as authority (see RAP 10.4(h)). When deciding whether to publish, the panel of judges considers

(1) Whether the decision determines an unsettled or new question of law or constitutional principle; (2) Whether the decision modifies, clarifies or reverses an established principle of law; (3) Whether a decision is of general public interest or importance; or (4) Whether a case is in conflict with a prior opinion of the Court of Appeals.
RAP 12.3(d).

So why bother looking at them?

I think this case is a good illustration. The judge (C.C. Bridgewater) gives a lot of factual detail from the record -- for instance, where the boy was living, what he told his mother, his father, and investigators, and what he said at the hearing to determine whether he was competent to testify. Reading those factual details can help you develop a sense of "real life" investigations. The opinion also analyzes the law, of course, and applies it to the specific facts -- so you can develop your judgment about when, for example, a child will be deemed competent to testify, when child hearsay is admissible, and so on.

... So I sometimes note unpublished decisions here. When I have a long list of cases to skim and time is short, I also skip past some unpublished decisions. After all, they aren't as important as published decisions.

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TrialPrep: Boxers or Briefs? - No - Binders or Files?

[TIP] A lawyer who says she "must have missed the 'Trial Notebook' class in law school" talks about her experience with using file folders -- and why she's now a convert to notebooks.TrialPrep: Boxers or Briefs? - No - Binders or Files? The author (Rachel Brill) is one of two contributors to TrialPrep, a new blog sponsored by the Puerto Rico Association of Criminal Defense Lawyers.

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Wednesday, May 4, 2005

Judge sentences AWOL juror to 10 days

[NEWS] When the judge tells you to remain in the courtroom during jury selection, you really ought to stay. - Judge sentences AWOL juror to 10 days, April 26, 2005.

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Colo. Court Considers Juror Questions

[NEWS] If a juror is puzzled by a witness's testimony, should the juror be able to ask a question? What safeguards could judge use? A case before the Colorado Supreme Court challenges the practice. A news story discusses that case and general issues around the country.Colo. Court Considers Juror Questions, Wash. Post, April 30, 2005.

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Tuesday, May 3, 2005

CrimeLynx website and TalkLeft blog

CrimeLynx is a website aimed at criminal defense practitioners. Developed by Denver-based attorney Jeralyn Merritt, the site includes links ("the best, not the most of the web") for legal research, forensic and expert resources, investigation, and crime policy.

[NEWS] The Crime Line has news stories from Reuters, the Washington Post, the New York Times, etc., selected to offer "Defense-Oriented Coverage of Today's Crime News."

[OPINION] CrimeLynx has a companion blog, TalkLeft, with "liberal coverage of crime-related political and injustice news." Posts today include "Booker Update" (Booker's attorney writes that Booker was resentenced -- with exactly the sentence he'd been given before his Supreme Court case) and "Judge Defends Peremptory Challenges."

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Feedback! Feedback! Feedback!

Please take a couple of minutes to complete a short survey about this blog.

Since I started the blog on January 20, I've gotten to develop my technical skills and I've also had the chance to look for and skim a lot of interesting material about trial advocacy. I've posted pretty regularly, so we can see how the blog could work.

I have a sense of what running the blog takes on my end. What I don't know is whether it's reaching anyone. If it isn't, then I can work on other projects. If it is, then we might keep it going -- year-round or just during the two quarters of Trial Ad each year.

The survey will be up until May 31.

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Talk to me.

Monday, May 2, 2005

ABA White Paper Studies Ways to Increase Lawyer Assistance for Self-represented Litigants

[RESEARCH] The ABA's Committee on the Delivery of Legal Services released a white paper studying lawyer assistance for self-represented litigants.

"An Analysis of Rules That Enable Lawyers to Serve Pro Se Litigants," examines various states’ amendments to rules of professional conduct and procedure as well as other rules and laws that enable lawyers to provide a limited scope of representation, or "unbundled" legal services, to clients who otherwise would proceed on a pro se basis. The purpose of the report is to provide policy-makers with useful information if they are considering similar rules in their states.

* * *
While pro se litigants may not be able to afford a full spectrum of legal services, the white paper states, many would benefit from the assistance of a lawyer for certain aspects of their case. Although many courts have developed resources to assist people representing themselves, certain services – particularly those requiring legal strategies – are best provided by a lawyer. By examining rule changes in various states, the white paper suggests ways that other states can make limited-scope legal assistance available to pro se litigants and encourage more lawyers to help people in need of legal assistance. Guidance from lawyers about legal process also would enable pro se litigants resolve their matters more efficiently.

The white paper identifies five topical areas that states have addressed through rule changes: defining the scope of representation, clarifying communications between counsel and parties, creating parameters for lawyers’ role in document preparation, governing the entry of appearances and withdrawals for limited representation, and checking conflicts for limited service programs. The paper is available at
ABA News Release (April 21, 2005).

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Juror Appreciation Week (ABA)

[EVENT] May 1-7 marks the first national Juror Appreciation Week, building on the Law Day 2005 theme, "The American Jury - We the People in Action."

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