Tuesday, November 29, 2005

How Many Trials?

[RESEARCH] I wondered: how many trials are taking place in Washington Courts? Of those, how many take place here in King County? Are there more or fewer than a few years ago?

So I spent a little time looking at the caseload reports from the Washington Courts. In these, you can find all sorts of data about filings, dispositions, nature of cases, and more. Here are just a few statistics:

Filings and trials in the superior courts in 2004

  • Filings
Criminal: 48,161 (up 13% from 2000)
--- King County: 10,209
Civil: 128,009 (up 21% from 2000)
--- King County: 39,309
Domestic Relations: 37,703 (down 1% from 2000)
--- King County: 7,507
  • Trial Proceedings
Criminal: 2,207 (down 11% from 2000)
--- King County: 537
Civil 1,462 (down 15% from 2000)
--- King County: 342
Domestic Relations: 2,563 (about the same as 2000)
--- King County: 814

So just a small slice of the cases filed actually go to trial. (Of course, you need to know about trial practice even if your case doesn't go to trial. Settlement negotiations and motions practice are shaped by how you think the case would play out if tried.)

Trials in the Courts of Limited Jurisdiction in 2004
  • Jury Trials
Civil trials set: 681; civil trials held: 78
--- King County: 145 civil trials set; 22 civil trials held
All trials set: 97,212; all trials held: 2,999
--- King County: 15,315 trials set; 884 trials held
  • Non-jury Trials

Civil trials set: 4,886; civil trials held: 1,717
--- King County: 1,157 civil trials set; 325 civil trials held
All trials set: 23,158 civil trials set; all trials held 6,956
--- King County: 3,776 trials set; 1,623 held

OK, all those numbers are pretty dense. Try these:

  • Just over 1% of civil cases filed in superior court go to trial!
  • Less that 5% of criminal cases filed in superior court go to trial!
  • Almost a quarter of the felony trials (i.e., criminal trials in
    superior court) in the state are in King County!
  • 70% of the trials in the courts of limited jurisdiction are non-jury trials!

Monday, November 28, 2005

ABA - Tort Trial & Insurance Practice Section

Interested in personal injury law? Consider TIPS, the ABA's Tort Trial & Insurance Practice Section. Law students, if you belong to the ABA, then you can join the section free.

Some of the content on the section's website is limited to members. One freebie is TortSource, a newsletter that

highlights topical tort and insurance law issues and includes technology advice, practice tips and updates on continuing legal education programming. "When I Was A Young Lawyer," "Legislative Update," "In Motion" and a host of other unique columns round out each issue of this quarterly newsletter.
The summer 2005 issue had two pieces about appeals -- how to preserve issues for appeal and, once you get an appeal, oral argument advice for trial attorneys. Fall 2005 has a piece called "Let the Jury Draw the Conclusion":
The juror who comes to an independent conclusion will hold on to that deduction much more tenaciously than will a juror who is told what to think and decides to think that way only because that is what the lawyer said to do. * * * [Jurors who reach their own conclusions will] will listen more closely for the facts, analogies, and argument that support the conclusion and allow them to defend it in the jury room.

The fall issue also has several pieces about developments in employment law.

For discussion of policy questions, see the TIPS Task Forces. For example, the Task Force on Contingent Fees has a 66-page Report on Contingent Fees in Medical Malpractice Litigation (draft, Sept. 20, 2004)

The Emerging Issues Committee has a list of emerging issues, with some links to press releases, letters, etc. Students, looking for a paper topic?

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Monday, November 21, 2005

Is it good to be considered a pit bull in the courtroom?

The Florida Supreme Court has sanctioned two attorneys for using a pit bull in their advertising (and in their phone number, 1-800-PIT-BULL) because the ads "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice." Florida Bar v. Chandler.

Carolyn Elefant has a post on MyShingle (her blog for solo practitioners) (that's where I got the link to the case -- thanks!). My Shingle: An Ethics Decision for the Dogs She includes ads from a firm that uses a Golden Retriever and an elephant and wristwatch with Georgetown's cartoon bulldog. Demeaning? She concludes "What a silly decision." There are several interesting comments, at least one defending the court's position.

Before going to MyShingle, I'd looked for a news story about the case. (I saw an AP snippet over the weekend.) One of the first things I found was:

Ed Gillespie was called ''President Bush's pit bull'' during the 2004 presidential campaign, when as chairman of the Republican National Committee he seemed to live on cable television trading snarls with Terry McAuliffe, his attack dog of a counterpart at the Democratic National Committee.
New York Times, July 6, 2005. (If you Google Gillespie pit bull, you'll see a bunch of examples.) It doesn't seem that he minds this -- or that Republicans as a whole feel demeaned because the chairman of the Republican Party has that nickname. It's ironic, because during the heat of the presidential campaign, it seemed that "trial lawyer" was used as an insult, but "pit bull" was a term of respect.

PS As a UW Husky, I considered finding dog images to match Elefant's Georgetown bulldog, but time is short. Go Dawgs.

PPS (Nov. 27) David Giacalone at f/k/a ethicalEsq offers a more current example of "pit bull" as a compliment for a Republican: President Bush's description of Harriet Miers as "a pit bull in size 6 shoes."

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Wednesday, November 16, 2005

Specialized courts vs. juries

[POLICY] Are some cases too complex factually for a jury of ordinary citizens to sift through? Or is the American jury the best factfinder for all sorts of cases? Would we get "better" results if we had professional factfinders for patent cases? How about medical malpractice cases?

An article in the Oregon State Bar Bulletin discusses the issue, with quotations from a jury consultant, a plaintiff's attorney, and intellectual property experts. Janine Robben, Who Decides? Specialized Courts vs. the Jury of Peers, April 2005.

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WSBA considering amicus brief in case re DNA evidence gathering

[CASE] Twenty years after a 13-year-old girl was found raped and murdered, the police tried to match up DNA evidence with a suspect (the man who had been the boyfriend of the girl's older sister). They sent a letter to the defendant (he was then living in New Jersey), on the letterhead of a fictitious law firm, inviting him to join a fictitious class action. When he replied, they obtained enough saliva from the envelope he'd licked to match the DNA sample.

The Washington State Bar Association has been asked to write an amicus brief in the defendant's appeal to the Washington State Supreme Court, State v. Athan. The amicus committee recommends that "the appropriate issue to be addressed by the WSBA is the detrimental effect on the bar and the administration of justice if police are allowed to falsely pose as lawyers." The Board of Governors invites comments, and will decide at its next meeting, December 9-10. For more information see Notice of Request for WSBA to File Amicus Curiae Brief.

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Monday, November 14, 2005

Making the Leap From PI to IP

[NEWS] Since Texas has enacted tort reform measures, some personal injury firms are moving into intellectual property litigation. Here's a profile of a firm in Marshall, TX, home of the Eastern District of Texas, a court with a reputation for being friendly toward patent plaintiffs (in both bench and jury trials). law.com - Making the Leap From PI to IP, IP Law & Business, Nov. 14, 2005.

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Sunday, November 13, 2005

Application of rape shield statute to exclude victim's email message

[CASE] A recent case raises several issues about the trial of a juvenile as an adult. Here I'd like to highlight the final issue discussed in the case: whether it was error for the trial court to exclude an email message from the victim.

The defendant (Posey) and the alleged victim (H.A.H.) were high school classmates. Prior to or around the time the met Posey, H.A.H. wrote an email message to someone else describing some rape fantasies and saying she would like a boyfriend to choke her and beat her. The police made copies of emails from the H.A.H.'s computer. The defense wanted to introduce this one to show that H.A.H. consented to the violence and intercourse with Posey and to rebut her claim that she was afraid of him.

The trial court found that the email was highly prejudicial. The court noted that "[a]nybody who's had an e-mail correspondence with anybody knows it's easy to say things during that correspondence that you wouldn't necessarily say to their face."

After discussing limited situations when a victim's past sexual history can be admitted despite the rape shield statute (RCW 9A.44.020), Division 3 found that the trial court did not abuse its discretion in excluding the email.
Find Result - 2005 WL 2982134

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Ineffective asstance of counsel claims fail - discussion of defense counsel's trial tactics

[CASE] In an appeal of child molestation convictions, the defendant raised claims of ineffective assistance of counsel that give an interesting view of the defense counsel's trial tactics. State v. Cramer, 2005 WL 2858884 (Wash. App. Div. 2, Nov. 1, 2005) (unpublished), Find Result - 2005 WL 2858884.

Cramer contends that his trial counsel was constitutionally ineffective for several reasons. Primarily, he points to counsel's decision to cross-examine R.C. in a highly confrontational manner, which, by Cramer's account, could serve only to engender hate for Cramer in the jurors' minds. Cramer also maintains that his counsel was ineffective because he elicited unfavorable testimony; was repeatedly rebuked by the trial court for using improper impeachment procedures; failed to object to improper closing argument by the State; and acted unprofessionally in the courtroom.
I was particularly interested in the first issue -- the aggressive cross-examination of the child victim. The cross seemed to be so hard on the girl that the trial judge ordered the lawyer to do his questioning seated:
[T]his is my problem, sir, and this is why I told you to sit down, is that this witness is breaking down on the stand. I do not believe that badgering this witness is going to succeed for either side. If anything, if you look at your jury, they're tuning out this part of the testimony because they can't stand to watch this child go through that.
Not only did the questioning appear to be hard on the girl, but the defendant's reaction to it also made an impression on the judge. During sentencing, he told the defendant:
This child was on the stand for three hours, approximately. You know what really affected me about that testimony? Not so much what she said, but how you didn't react to it. You had absolutely zero expression while your attorney scathed her on the stand, skewered her six ways to Sunday.

And I'm thinking of those moments where he goes, [']You see your transcript. At this time and this place you said this?['] Trying to trip up this little girl. Okay. He did his job. But she broke down as a result of it. Okay.

But you didn't react, sir. And that really bothered me that a father, a biological father wouldn't react to that, seeing his own child put through that kind of torture.
On the ineffective assistance of counsel claims, the court concluded:
This court will rarely sustain an ineffective assistance claim where the 'entire record' on appeal 'reflects a vigorous and competent defense.' * * * Cramer received such a defense. This is reflected not only in the trial transcript, but in a record that contains detailed motions for discovery, continuance, a bill of particulars, dismissal, an arrest of judgment, and a new trial. Defense counsel's tactical decisions in representing Cramer did not constitute ineffective assistance. Were we to hold otherwise, such tactical decisions would be the norm with defense counsel intent on creating error for redress on appeal.
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Families fight at murder sentencing in Tacoma

[NEWS] On Thursday there was a scuffle between the families of a murder victim and his killer, sparked by a remark that the sentence was unfairly long, since the victim was 69 years old and "wasn't going to live forever." Families fight at murder sentencing in Tacoma, Seattle PI, Nov. 10, 2005.

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Convicted rapist tells judge he's rude

[NEWS] Here's a courtroom incident from Georgia: Convicted rapist tells judge he's rude, Seattle PI, Nov. 11, 2005. The defendant's outburst got him an extra 5 days on his sentence (which was already 99 years plus two life sentences).

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