Wednesday, July 27, 2005

Swearing to tell the truth -- on what book?

[NEWS] The North Carolina statute provides that witnesses should place their hand on "Holy Scriptures," but what counts? A court ruled that only the Bible counts and a Muslim could not swear on the Quran. The ACLU is challenging that decision. ACLU Sues Over Court Oaths - Raleigh Durham News & Observer, July 27, 2005.

Non-believers may affirm that they are telling the truth instead of using Holy Scriptures. The problem is when people of non-Christian faiths want to use the scriptures that are holy to them. Interestingly, the law was changed to "Holy Scriptures" in 1985 -- in its earliest version (1777) the oath was to be administered upon "the Gospels."

(By the way, I got the lead to this story from How Appealing, a blog well worth watching for comments on appellate litigation and general legal news.)

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Tuesday, July 26, 2005

New evidence casebook

[BOOK] Prof. Peter Nicolas has written a new casebook on evidence: Evidence: Problems, Cases and Materials. According to the publisher's description,

This new casebook provides a comprehensive, problem-based approach to the rules of evidence. Organized around the federal rules of evidence, this casebook is more comprehensive than most in that it provides coverage of every single rule of evidence, down to the most obscure exceptions to the hearsay rule. Yet, through careful case choice and editing, Nicolas has produced a book that can easily be taught from cover-to-cover in as few as three semester hours.

Key features of the casebook include 89 in-depth problems that are designed to teach all the nuances of the rules, an enriched section on scientific evidence, application of the rules to electronic evidence, and appellate review of evidentiary rulings. In addition, the casebook incorporates the Supreme Court’s recent Confrontation Clause decision in Crawford v. Washington, as well as pending proposed changes to Rules 404, 408, 606, and 609.

The book is currently on Course Reserve (for the summer school Evidence Course), at KF8934 .N53 2005. When it's not on Course Reserve, it will be available in the Classified Stacks.

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Admissibility of criminal defendants' taste in entertainment

[RESEARCH] Should the prosecution be able to use evidence that a defendant listens to gangsta rap or death metal, plays violent video games, or reads gruesome books? In a recent law review article, Prof. Helen A. Anderson examines the different treatment of producers of these works (when sued civilly or censored in some way) and the consumers of the works (when tried for violent crimes). The producers are protected by the First Amendment -- but First Amendment arguments are not always even raised on behalf of the consumers.

Helen A. Anderson, The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899 (2004).

Prof. Anderson recommends:

The First Amendment does not erect a barrier to the admission of relevant evidence, but neither should it be completely trodden underfoot whenever the state seeks to introduce evidence of a defendant’s taste in books, movies, or music. Where such evidence is likely to be extremely prejudicial, as it will always be when the state seeks to tie violent entertainment to the crime, courts should require more than a mere similarity between the crimes depicted and the crime charged. In addition, reviewing courts should not give trial courts broad discretion to determine whether the defendant’s constitutional rights are affected; constitutional issues should be reviewed de novo as questions of law. Finally, courts should engage in harmless-error analysis cautiously.
Id. at 936.

Prof. Anderson observes that producers and consumers may have been treated differently with respect to these First Amendment issues because of resource disparities. An entertainment corporation defending a suit may hire teams of expensive lawyers while most criminal defendants are represented by public defenders with overwhelming caseloads. It shouldn't be surprising then that the criminal cases don't have the constitutional issue briefed fully.

Prof. Anderson states that "better lawyering, beginning with timely and accurate objections, could go far toward changing the outcome with respect to consumption evidence in criminal trials." She hopes that the article "will help to alert defense counsel to the First Amendment issues at stake." Id. at 942.

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Advice for clients: dress conservatively in court

[TIP] "Dressing for court appearances not a casual affair" says the Benton County (Arkansas) Daily Record. The article includes some amusing and illustrative anecdotes, including the story of a witness in a battery case who was held in contempt for wearing a T-shirt that said "Wanna raise some hell?" on the front with "Hell Yeah!" on the back.

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Tuesday, July 12, 2005

Day on Torts: Flow Sheet for Handling a Personal Injury Case

[TIP] Tennessee lawyer John Day offers a Flow Sheet for Handling a Personal Injury Case.

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How to Screen Cases

[TIP] Here's a simple three-part test from the South Carolina Trial Law Blog: How to Screen Cases.

And, speaking of evaluating cases, here's a tip from the Illinois Trial Practice Weblog on evaluating class actions: Evaluation of Potential Class Actions: Is There a Way to Settle the Case?

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Duffy Graham: The Consciousness of the Litigator

[BOOK] In The Consciousness of the Litigator (KF306 .G724 2005 at Reference Area), Duffy Graham

examines the moral consciousness of the litigator * * * and explores the role of the lawyer in American political and social life and in the judicial process and plumbs his understanding of himself, his work, and especially his sense of right and wrong.
The publisher suggests that this book should be "a must-read for the many law students, scholars, and practicing litigators who struggle to reconcile ethical questions with the dictates of their highly commercialized professions."

University of Michigan Press description.

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Monday, July 11, 2005

Law students undertake Titanic trial

Last week ten students at Baylor presented a mock trial in which families of victims sue the Titanic's owner, its builder, and the manufactuer of its radio equipment. The mock trial culminated a required trial practice class. Law students undertake Titanic trial, Waco Tribune-Herald. A press release from the law school has more information about the class.

The Waco newspaper stated: "The U.S. and British governments conducted inquiries into the sinking, but no lawsuits went to court." That's not exactly right. In fact, there was a bench trial in the U.S. (settled after closing arguments) and a jury trial in England. (Before the U.S. trial, there was litigation, up to the U.S. Supreme Court, over whether the U.S. Limitation of Shipowners' Liability Act applied to a foreign-flagged vessel. The Supreme Court held that it did.) See Robert D. Peltz, The Titanic's Legacy: The History and Legal Developments Following the World's Most Famous Maritime Disaster, 12 U.S.F. Mar. L.J. 45, 51-58 (1999-2000).

Even if it's not true that there were NO trials related to the Titanic, it's certainly safe to say that there was nowhere near the litigation there would have been today -- and the lawyers certainly didn't use the computer simulations the Baylor students used.

Much of the litigation over losses arising from the TITANIC disaster was filed in the United States. It has been estimated that the total claims actually filed for loss of life and property damage amounted to only $16 million, which would be the equivalent of over $275 million today. Had the disaster occurred today, potential claims would certainly total much more than $275 million. The relatively low figure can be explained by differences in attitudes toward litigation for personal injuries and wrongful death in 1912 and today. Most socially prominent families of the time thought it demeaning to "put a price tag on a gentleman's life." For example, the Astor, Widener, Guggenheim, and Strauss families filed no claims for the deaths of these extremely wealthy and prominent men. While the Thayer family filed a claim for their lost luggage, they did not file a claim for the death of John Thayer. The widow of Broadway producer Henry B. Harris filed the largest claim, in the amount of $1 million.
Id. at 51-52 (footnotes omitted).

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Friday, July 1, 2005

The Supreme Court Nomination Blog

[NEWS] Justice Sandra Day O'Connor has announced her retirement. For commentary and useful links (e.g., to interest groups' reactions), see
The Supreme Court Nomination Blog, hosted by Goldstein & Howe, a DC law firm specializing in Supreme Court litigation.

For a more irreverent look at Justice O'Connor (and federal courts generally), see Underneath Their Robes.

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