Monday, January 30, 2006

Judge Seats Jury in Enron Trial

[NEWS] This evening I heard an NPR story reporting that a jury had been seated in the Enron trial -- that is, the trial of Ken Lay and Jeff Skilling. From the little bit that I heard, I began thinking of questions:

  • What sort of voir dire was there? What sort of jurors would you want if you were the prosecutor? The defense team? How would you assess the pool? How long did they take to seat this jury?
  • The judge told the jury this would be one of the most interesting cases they could see. Will it? There's the high drama of big money, but won't there be a lot of technical financial talk?
  • Prof. Howard was talking about trial exhibits this afternoon ... What sort of exhibits will this jury likely be asked to follow? Will the jurors be given any aids, such as copies of the exhibits or juror notebooks? (See post about study of juror understanding of scientific evidence.)
When I got home, I went to the Houston Chronicle's website, which has more Enron coverage than most of us can absorb. Here are some highlights:
Houston being some distance from Washington, I don't plan to cover much about this trial -- if you're curious, follow it in the Houston Chronicle. Other blogs that might have some commentary (although not "all Enron, all the time" as in the Chronicle) are:

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Friday, January 27, 2006

Prejudicial Pretrial Publicity

[RESEARCH] When does pretrial publicity get in the way of a fair trial? How can it be assessed?

See Rich Curtner & Melissa Kassier, "Not in Our Town": Pretrial Publicity, Presumed Prejudice, and Change of Venue in Alaska: Public Opinion Surveys as a Tool to Measure the Impact of Prejudicial Pretrial Publicity, 22 Alaska L. Rev. 255 (2005). Curtner is the Federal Public Defender for the District of Alaska; Kassier is a 3L at Case Western. The article discusses the law generally, focusing on two cases where the public defender used public opinion polls to show the impact of news coverage before the trials.

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Thursday, January 26, 2006

Bill re Criminal Discovery Materials

[LEGISLATION] What happens to material a criminal defense attorney obtains during discovery? Under current rules, redacted material may be given to the defendant. HR 2613, introduced Jan. 11, would forbid that.

The House Judiciary Committee held a hearing on 2613 (and 4 other bills) yesterday. If you're into this, go to TVW to listen to streaming audio or download the hearing to iTunes. (I see plenty of people around campus and on the bus with iPods. It never occurred to me that they were listening to the Washington House Judiciary Committee, but you never know, do you?)

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House Bill Would Require DNA for Death Penalty

[LEGISLATION] HB 3230, introduced today, would require DNA evidence to support the conviction of anyone sentenced to death to reduce the risk of innocent people being executed. It is scheduled for a hearing in committee on Jan. 31.

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Thinking about Solo Practice?

Are you thinking about solo practice? Take a look at Carolyn Elfant's blog, My Shingle, with lively and thoughtful commentary on life as a solo practitioner.

GP/Solo is the magazine of the ABA General Practice, Solo & Small Firm Division.

And for a book with all sorts of great advice, see Jay Foonberg's How to Start and Build a Law Practice (KF300 .Z9F66 2004 at Reference Area). See review in the Crier.)

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The Illinois Trial Practice Weblog

[TIP] The Illinois Trial Practice Weblog by Evan Schaeffer has consistently high-quality tips and notes about trial advocacy. Some items are, as the blog's name suggests, focused on Illinois practice, but many are applicable to anyone developing trial skills.

From the current posts, I recommend:

You can find lots more by using the list of Categories (e.g., Closing Argument, Courtroom Tech, Evidence) in the sidebar on the left.

Are you a senior attorney who gives assignments to associates, law clerks, or externs? Take a look at Giving Legal Research Assignments to Others (Dec. 14). And if you are an extern, clerk, or associate, take a look at it anyway and think about asking for that information when you get assignments, even if your boss forgets to give it to you.

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Expert Witness Database on Westlaw

The new EW-DOCS database on Westlaw contains documents from expert witnesses filed in the state and federal trial courts throughout the United States. A document is an expert report, affidavit, deposition, or trial transcript.

Users have three options for searching this database:

1. the traditional "terms and connectors" search
2. natural language
3. template

The template search provides a search box for key words and phrases along with fields for the expert's field, type of case, party for whom the expert testified, federal and/or state courts, and jurisdiction.

I tried some sample searches. It's interesting to see the range of material -- for instance, in Washington I looked at an economist's analysis of the wine distribution industry and an engineer's statement about how seatbelts functioned in an accident --and how an expert's affidavit is structured.

Thanks to my colleague Cheryl Nyberg for this tip.

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Wednesday, January 25, 2006

Do Jury Trial Innovations Help Jurors Understand Scientific Evidence?

At AALS I heard a presentation about a study investigating how jurors understand expert testimony, specifically about mitochondrial DNA (mtDNA). Valerie P. Hans, now a professor at Cornell Law School (formerly in the Department of Sociology and Criminal Justice at the University of Delaware), was one of the investigators who had mock juries -- volunteers from the Jury Assembly Room of a Delaware Superior Court -- view a videotaped mock trial, deliberate, take true-false quizzes, and be interviewed. Some juries were allowed to use various innovations, such as note-taking, asking questions of witnesses (the researchers had DNA experts on call via telephone), juror checklists, or juror notebooks.

The full study is:

B. Michael Dann, Valerie P. Hans, David H. Kaye, Testing the Effects of Selected Jury Trial Innovations on Juror Comprehension of Contested mtDNA Evidence Final Technical Report (Dec. 30, 2004).
Based on the true-false quizzes and interviews, the investigators found that most jurors understood most of the basics about mtDNA. Comprehension was higher with any of these factors:
  • more education, especially math and science courses;
  • a job that involves math and science;
  • participating in jury deliberations.
Study participants were concerned about the reliability of mtDNA in the mock trial. Non-whites and jurors with less formal schooling were more concerned about reliability and possible contamination. (p. 54)

Jurors who had available one or more of the "innovations" found them helpful and supported their use (p. 66). But the innovations did not help comprehension much:
Contrary to our predictions, both before and after deliberation, no significant differences are found when comparing each condition separately to the No Innovations group.121 That is, compared to jurors who had no access to the innovations, the Juror Comprehension scores are not significantly higher for jurors in the various innovations conditions.
(p. 70) However, a combination of innovations does help:
After deliberation, jurors in the Jury Notebooks condition, the Checklist condition, and the All Innovations conditions score significantly higher on the juror comprehension scale, compared to the jurors in the Jury Note taking condition. Thus, additional innovations on top of jury note taking appear to improve the jurors' comprehension of the scientific evidence.
(p. 70) Chapter 8 – Summary of Findings and Conclusions and Some Practical Suggestions for DNA Practitioners (pp. 81-86) wraps it all up.

(updated Feb. 6)

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Suit filed for readers' wasted time

[NEWS] The author of a supposed non-fiction memoir has acknowledged that parts are fiction, and the publisher has offered buyers a refund of the purchase price. On Thursday plaintiffs filed a lawsuit in the Western District of Washington seeking damages for the "lost time" spent reading the book. They seek class action certification. The Seattle Times: Local News: Seattle suit filed for "lost time" over controversial best-seller

Feb. 1: Brian McDonough from Legal Pad labels this suit How Not to Combat Tort Reform.


Tuesday, January 24, 2006

House Passes Med Mal Bill

[LEGISLATION] The Washington House passed a medical malpractice bill yesterday. The Olympian - Medical malpractice bill passes first hurdle. The bill's measures include:

  • Doctors with three serious acts of unprofessional conduct in 10 years would lose their licenses.
  • Health care workers' apologies or admissions of fault would not be admissible as evidence in a later action.
  • Insurers, self-insurers, and claimants would be required to reports all settlements of closed claims to the Insurance Commissioner. (Florida has had this requirement for years. Neil Vidmar is working on a study using the data.)
  • Absent approval by a judge, litigants would be limited to two expert witnesses per side.
  • No med mal suit could be filed without a "certificate of merit" from a qualified expert.<
  • Attorneys fees could be awarded in some cases where the prevailing party had offered a settlement that was rejected.
  • A voluntary arbitration system would be available for claims up to $1 million.
Click here for more about HB 2292, including text of the various versions (the one that passed was the second substitute bill), bill reports, and its day-by-day status in the legislature.

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Monday, January 23, 2006

Lawyer found guilty in rival's shooting

[NEWS] A local lawyer was found guilty last month of attempted murder for shooting opposing counsel in the head in 2004. The Seattle Times: Lawyer found guilty in rival's shooting William Joice did not dispute that he shot Kevin Jung. His defense was that he meant to shoot Jung only in the arm or shoulder in order to buy time in the case they were involved in (a dispute over a gift shop franchise).

Over several hours of testimony, Joice described how he entered an alcohol and stress-fueled "fantasy world" in summer 2004, when he came up with the idea of shooting Jung. He had money problems and missed several deadlines in the gift-shop case, which Jung had pointed out repeatedly in court filings.

Many of the jurors could empathize with his misfortune, but only to a point.

"Everyone agreed [that] even though we all have problems in our lives, we don't solve them by trying to kill someone," said jury forewoman Karen Morgan, 42, of Maple Valley.

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Online Mock Juries

[NEWS] offers this article about firms that will run mock trials online:Legal Technology - 12 Angry Surfers, Small Firm Business, Dec. 22, 2005. Two consulting firms mentioned are eJury and Virtual Jury.


Study of Voir Dire

[RESEARCH] A study of voir dire in one Midwestern county explores attorneys' practices, attitudes, and experience. Marvin Zalman & Olga Tsoudis, Plucking Weeds from the Garden: Lawyers Speak about Voir Dire, 51 Wayne L. Rev. 163-448 (2005), Find Result - 51 WAYNLR 163.

The researchers created a sample of 46 jury trials -- 22 criminal, 24 civil -- in the county (which is unnamed, to preserve the anonymity of attorneys and judges). They then conducted 60-90 minute interviews with attorneys in the cases, interviewing 79 attorneys in all. Their questionnaire covered topics such as the perceived purpose of voir dire, preparation for voir dire, how the attorneys decide whom to strike, whether peremptory strikes should be retained, whether the attorneys had experience with Batson challenges. Attorneys also took a written survey to measure general attitudes (such as "liberal" and "conservative").

  • "Attorneys gave conflicting accounts of the fairness of judges' ability to rehabilitate jurors who had made biased statements."
  • All respondents felt that the peremptory challenge should not be eliminated.

  • Excerpts from the article's Conclusion (pp. 382-89):
    • "Most respondents agreed that gaining rapport and 'educating a jury on your case theory' were goals they sought to achieve during voir dire."
    • "On the whole, the respondents had modest views of their ability to predict the decisions of jurors."
    • "For the most part, preparation for voir dire was a byproduct of preparation for the trial, and not a distinct phase of preparation that required unique efforts."
    • "One important aspect of preparation was knowing the judge's reputation for the extent of latitude allowed to attorneys on voir dire and knowing any special rules they might impose on the jury selection process."
    • "During voir dire, attorneys found it useful to have either another attorney, a paralegal, or a client observe the jury to provide information on the body language of jurors and to assist in other ways."
    • "On the whole, voir dire was not excessively time consuming." Mean estimates from respondents were: 1 hr. 53 min. (crim defense attys); 2 hr. 29 min. (prosecutors), 1 hr. 45 min. (civil attys).
    • "To explore the reliance on stereotypes, we asked whether jury panels appeared to reflect a cross-section of Midwest County residents. 'Liberal,' or civil plaintiffs' and criminal defense attorneys, tended to answer 'no' while 'conservative,' or civil defendants' attorneys and prosecutors, tended to answer 'yes.'"
    • "All respondents felt that the peremptory challenge should not be eliminated."

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    Saturday, January 21, 2006

    Wash. Supreme Court Comes to UW

    [EVENT] The Washington State Supreme Court visits the UW School of Law this week, on Wednesday afternoon (reception in the afternoon) and Thursday (oral arguments and a panel on clerkships).

    The first case scheduled for argument is State v. Athan, challenging the way police got DNA evidence against the defendant. They sent him a letter purporting to be from a lawyer; when he sent back the reply envelope about the supposed class action, they got saliva from the envelope flap. At its December meeting the WSBA Board of Governors voted to have WSBA file an amicus brief "to send a clear statement that police or investigators holding themselves out as lawyers was not an allowable ruse." WSBA would not address the remedy.

    A detailed schedule links to the parties' briefs in the three cases being argued is here.

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    More on Indictment of Alleged Arsonists

    [NEWS] The Seattle Times reports more detail about yesterday's indictment in Eugene of eleven people in the series of arsons allegedly on behalf of the Earth Liberation Front (ELF) and Animal Liberation Front (ALF). The Seattle Times: Local News: Prosecutors portray close-knit arson team.

    The Times article links to the indictment in this complex conspiracy case. Sixty-five counts! Eighty-three pages!

    The press release from the U.S. Attorney in Oregon is here.

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    Friday, January 20, 2006

    Eleven Defendants Indicted on Domestic Terrorism Charges

    [NEWS] The Department of Justice obtained an indictment against 11 defendants in Eugene, charging them with arson and destruction of an energy facility for allegedly participating in an eco-terrorism campaign in five western states. DOJ Press Release. One of the incidents was the May 21, 2001, arson that seriously damaged the UW's Center for Urban Horticulture. (The Center for Urban Horticulture has been rebuilt and was rededicated a year ago.)

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    Thursday, January 19, 2006

    New Trial after Prosecutorial Misconduct

    [CASE] Prosecutorial misconduct in opening and closing statements leads to a new trial in a child molestation case. In the unpublished opinion, Division 2 also addresses a jury instruction question. State v. Mackey, 2005 WL 3541568 (Wash. App. Dec. 28, 2005), Find Result - 2005 WL 3541568.

    The defendant was charged with molesting his neighbor, S.B., when she was 11 to 14 years old. The defendant's former step-daughter testimony about similar conduct years before, when she was a minor, was allowed under Rule 404(b) as "proof of a common scheme or plan, absence of mistake or accident."

    In oral argument, the state conceded prosecutorial misconduct in two of the three instances the defendant raised and that the misconduct prejudiced the defendant's right to a fair trial. The court found all three instances to be misconduct.

    • In the opening statement the prosecutor said that the because the defendant "damaged 2 young lives" he should be held accountable at least for the molestation to the neighbor. This use of the step-daughter's testimony went beyond what was allowed under 404(b).
    • In closing argument the defense said that the neighbor girl was not credible because of her delay in reporting the abuse. The prosecutor then recounted a story about a Russian figure skater who had been sexually abused an beaten by her coach -- presumably the story was meant to show that victims of abuse often do not report it. This was improper, both because it was meant to "arouse the jury's passion" and because it was extrinsic evidence.
    • During closing argument the prosecutor said that this was not the first time the neighbor girl had had to testify about the defendant's conduct. This, too, was misconduct.
    After ordering a new trial, the court of appeals also discussed a jury instruction that had been given:
    Evidence has been introduced in this case on the subject of the child molestation of [the former step-daughter] for the limited purpose of proof of a common scheme or plan, absence of mistake or accident. You must not consider this evidence for any other purpose.
    This was error because it appeared to indicate that the judge believed the molestation had occurred. Since the defendant contested that the instruction should be "Evidence has been introduced . . . on the subject of the alleged child molestation. . . ."

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    Tuesday, January 17, 2006

    The CSI Effect

    [NEWS] This weekend the Seattle Times ran an AP story about the "CSI Effect" -- worries that the popularity of shows like "CSI" and "Law & Order" affect jurors. Linda Deutsch, TV distorting jurors' expectationst?, Jan. 15.

    Which side benefits the most — prosecutors or defense attorneys — is debatable. While "Law & Order" glamorizes prosecutors, "CSI" can set standards for the infallibility of forensic evidence that prosecutors can't often meet, a science-solves-all formula that millions of viewers may bring to jury service.
    * * *
    "The expectations of jurors are more elevated," said Elissa Mayo, assistant lab director for the California Attorney General's Bureau of Forensic Services. "They think that we have all the space-age equipment that they see on TV and before you come back from the commercial break you have the results."

    For a sampling of other stories, see Bibliography of Resources Related to the CSI Effect, prepared for a program at last summer's ABA meeting, "CSI Meets the Courts: The Brave New World of Forensic Technology."

    While at the ABA site, I found that the ABA awarded its "Silver Gavel" to the Chicago Tribune for a special series called "Forensics Under the Microscope." The reporters told the ABA:
    As we were reporting the series, other newspapers were reporting on prosecutors’ complaints of a so-called “CSI effect,” that is, jurors acquitting defendants for lack of precise forensic evidence. In fact, our reporting showed the more systemic problem is that prosecutors are using unproven forensic evidence and testimony and that jurors are readily accepting it. We hope that readers — be they prosecutors, defense attorneys, judges or potential jurors — will be better informed when they enter the courtroom.

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    Monday, January 16, 2006

    "Twinkie Defense" an Urban Legend? "Urban Legends Reference Pages is a great site for checking out rumors, hoaxes, and stories that just don't seem quite right. Checking for something else, I came across its entry for The Twinkie Defense. The entry suggests that it was a distortion to say that Dan White's defense of diminished capacity due to eating Twinkies and other sugar-filled foods:

    Neither White nor his defense team ever claimed that White's consumption of junk food had wrought psychological or physiological changes in White that caused him to act in way inconsistent with his "normal" behavior when he shot George Moscone and Harvey Milk. White's defense was that he had been suffering from a long-standing and untreated depression that diminished his capacity to distinguish right from wrong, and thus he was not capable of the premeditation required to support a charge of first degree murder. Dr. Martin Blinder was called as a witness by the defense to testify that the conversion of the previously health-conscious White to a diet of Twinkies and other junk foods was evidence of his depression. This testimony was similar to offering evidence that the habitual wearing of torn and dirty clothes by someone who had previously always been a snappy dresser was a sign that that person was suffering from depression.


    I did a little research. State v. White, 117 Cal. App. 3d 270, 172 Cal. Rptr. 612 (1981), briefly summarizes the testimony of six psychiatrists (5 for the defense, 1 for the prosecution), mentioning depression repeatedly but never mentioning Twinkies or sugar. But in law review articles, it is easy to find statements that White relied on his sugar consumption to establish his diminished capacity defense. The "Twinkie defense" is held up as an example of "junk science."

    The most detailed account I found (in my limited searching) was in Eileen A. Scallen & William E. Wiethoff, The Ethos of Expert Witnesses: Confusing the Admissibility, Sufficiency and Credibility of Expert Testimony, 49 Hastings L.J. 1143, 1161-66 (1998):
    At the trial, White presented a defense of diminished capacity, using [precedent] . . . which held that evidence of diminished capacity, whether from intoxication, trauma or mental disease, could be used to show that the defendant did not have a specific mental state such as malice aforethought, or could not premeditate or deliberate to the degree required for a conviction of first degree murder. Thus, White presented expert testimony regarding his mental state at the time of the killings. This expert testimony was the source of one of the trial's most memorable images and one of the most reviled examples of "junk science" - the "Twinkie defense," as the press referred to the testimony of Dr. Martin Blinder. This defense expert testified that when White became depressed, he ate large amounts of junk food - Twinkies, Coca-Cola, etc. Moreover, Dr. Blinder testified that when "susceptible individuals" like White consume "large quantities of what we call junk food, high sugar content food with lots of preservatives can precipitate anti-social and even violent behavior." However, what is now forgotten is that the defense did not rely solely on the "Twinkie" theory; four other psychiatrists also testified for the defense, uniformly agreeing that White suffered from depression to such a degree that he possessed diminished capacity at the time of the killing and could not premeditate or deliberate.

    Id. at 1161 (footnotes omitted).
    Note that, despite the public attention and press surrounding the "Twinkie defense," no law reform was deemed necessary to prohibit that particular "scientific" theory. Indeed, when interviewed following the verdict, the jurors discussed the burden of proof and the prosecution's failure to prove premeditation "beyond a reasonable doubt," but none of them relied on "the Twinkie defense."
    Id. at 1166 (citation omitted)
    From this, it seems that White's defense emphasized sugar more than Snopes says -- but much less than the popular imagination (and law reviews) would have it.

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    Judge Jack E. Tanner

    [NEWS] Judge Jack E. Tanner died last week. The first African American judge in the Northwest, he was noted for several civil rights rulings, including one about prison conditions at the Washington State Penitentiary and a nationally famous "comparable worth" case. The Seattle Times: Obituary | Judge made key civil-rights rulings. Trial Ad note: one of the people quoted in the obituary is instructor Thomas Hillier.

    See also obituaries from the University of Washington School of Law (he was a 1955 graduate) and the Seattle PI.

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    Friday, January 13, 2006

    Creative Deal Fails to Win Lawyer Fees at 9th Circuit

    [CASE] reports Creative Deal Fails to Win Lawyer Fees at 9th Circuit.

    The 9th U.S. Circuit Court of Appeals on Wednesday dealt a blow to plaintiffs lawyers seeking court-ordered fees in small-money cases.

    Lump-sum settlements that preclude lawyers from seeking separate attorneys fees have long been a bane of the plaintiff bar, and of lawyer Michael Mitchell in particular.

    The plaintiff in the case was a girl who was unconstitutionally required to submit to a gynecological examination while in a juvenile detention facility. Mitchell did not expect the case to have a high monetary value and sought to protect his fee by having the client assign to him her right to seek attorneys fees and to waive her right to enter into a lump sum settlement. The agreement also said the Mitchell and his partner would recive the greater of 1/3 of the gross award (40% under certain conditions) or statutory attorney's fees.

    She did settle, for a "lump sum, including all attorney's fees." The sum was $29,999. Mitchell then went to court to seek the statutory fees -- asking for over $50,000.

    The 9th Circuit rejected his arguments:
    We hold that the provisions of the retainer agreement conveying Pony’s right to seek or waive attorney’s fees to Mitchell are void under California law. We reach this conclusion because Section 1983 sounds in tort and California law prohibits a plaintiff from transferring her substantive tort claims. We also find that Mitchell lacks standing to raise a constitutional challenge to the County’s settlement policy.

    Pony v. County of Los Angeles, No. 03-5685 (9th Cir. Jan. 11, 2006

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    McKenna Proposes Bills

    [LEGISLATION] Washington State Attorney General Rob McKenna is working with legislators to push several bills. His press release highlights seven bills in a sex offender package, which would:

    Increase penalties for sexually motivated crimes, possession of child pornography, and second degree assault of a child with sexual motivation.
    Strengthen the sex offender registration statute.
    Continue to restrict sex offenders from living within 880 feet of a public or private school statewide.
    Extend the statute of limitations in DNA cases.
    Require sex offenders to admit guilt before becoming eligible for special sentencing alternatives.

    Another bill addresses a number of aspects of methamphetamine -- clean up of sites, treatment of addicts, and criminal penalties.
    McKenna has also worked with legislative leaders from both parties to introduce a reporter shield bill (HB 2452/SB 6216) to protect confidential sources from being revealed and to protect the rights of the media to report on sensitive stories.
    One last bill (SB 6215) would limit government liability.

    See the press release for links to the bills and one-page legislative background papers.

    The WSBA Board of Governors was scheduled to hear McKenna talk about the reporter shield and government liability bills at its meeting yesterday.

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    Thursday, January 12, 2006

    Neil Vidmar

    [RESEARCH] Neil Vidmar, a social psychologist who teaches at Duke Law School, is one of the leading researchers on the jury. I got to hear him speak at last week's AALS meeting as part of a panel on "The Civil Jury in the Shadow of Tort Reform."

    Vidmar described a

    report to the Illinois State Bar Association of a study examining the incidence, frequency, size of verdicts and other aspects of the medical malpractice system in Illinois. The study looked at statewide data where available, concentrating on Cook and DuPage counties, and Madison and St. Clair counties. The study concludes that the Illinois tort system does not appear to be the cause of the undisputed fact that doctors' liability insurance premiums showed dramatic rises.
    Medical Malpractice and the Tort System in Illinois explains his methodology and his findings.

    He focused on the Chicago-area counties (Cook and DuPage), with about half the state's population and two-thirds of its doctors. In the two small counties that had been branded as "judicial hellholes," he found nothing to justify that reputation -- for instance, only 11 jury verdicts favoring plaintiffs in a 14-year period, and no decline in doctors (despite claims in the press).

    Chapter 2 of the report gives an interesting overview of the tort system, aimed at laypeople but helpful for anyone thinking about these issues. Here's a fact that grabbed me:
    Research on medical malpractice trials across the country indicates that when the case goes to trial the juries decide in favor of the plaintiff only between 20 to 30 percent of the time. * * *
    These statistics surprise many people. Part of the problem is that newspapers tend to report only cases with prevailing plaintiffs being awarded large sums of money while ignoring cases with smaller sums or cases in which defendants prevail.
    p. 14.

    Another study Vidmar discussed at the meeting looked at data from Florida, where insurance companies are required to report all settlements, so that Vidmar and his associates were able to look not just at the cases that went to trial but even the "cases" that were never filed.

    For a look at Vidmar's scholarship on these and other trial issues, see his bibliography.

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    Wednesday, January 11, 2006

    Identifying and Evaluating Expert Witnesses

    [TIP] Suppose you need an expert witness on neurogizmology. Where do you look? Or, on the other hand, what if opposing counsel lists some experts who will testify. How can you find out about their publications and qualifications? See Identifying and Evaluating Expert Witnesses by Hazel L. Johnson (an experienced law firm librarian) in Virginia Lawyer.

    The same issue also has an article with tips on web sources for researching scientific evidence questions: Paul Barron, "It's Not Rocket Science": Making Sense of Scientific Evidence.

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    Problems with Confessions

    [RESEARCH] If a defendant confessed to a crime, that's solid evidence, right? Not always -- but it can be hard to explain the problems to the judge and jury. At last week's AALS meeting in DC, Prof. Deborah Davis (Univ. of Nevada, Reno, Psychology Dept.) presented The Road to Perdition: Influence Tactics in Police Interrogations. Using social science research and examples of real cases where people who confessed were shown to be innocent, she explained common interrogation techniques and how they create psychological pressure to confess -- perhaps falsely or inaccurately.

    Prof. Davis suggests that an expert witness can help challenge a confession. The expert witness can:

    • Provide evidence that false confessions do occur
    • Explain both interrogative and non-interrogative influences promoting false confession
    • Explain the nature and impact of coercive interrogation
    • Evaluate suspect vulnerabilities that enhance susceptibility to coercive practices
    • Assist with or provide post admission narrative analysis
      to demonstrate likelihood of false confession

    Davis's PowerPoint is packed with information. She also makes available a book chapter:
    Davis, D. & O'Donohue, W. T. (2004). The road to perdition: Extreme influence tactics in the interrogation room. In W. T. O’Donohue, E. Levensky (Eds.) Handbook of Forensic Psychology (897-996). New York, Elsevier, Academic Press.
    If you're interested in this type of research, take a look at her website, which includes papers on eyewitness testimony, consent in sexual offense cases, and other evidence-related research.

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    Monday, January 9, 2006

    Ex-Prosecutor Suspended For Misleading Trial Court

    [CASE] A New York appellate court suspended a lawyer for three years for lying about a witness's whereabouts. - Ex-Prosecutor Suspended For Misleading Trial Court. According to experts interviewed in the NY Law Journal, this is an unusually strong sanction for prosecutorial misconduct.

    During a felony trial, the defense argued that the prosecutor had violated Brady by withholding a police report of a witness whose statements were exculpatory. When questioned by the judge, the prosecutor said that he had been unable to contact the witness at her residence. Later, he located and interviewed the witness at her work. But when the judge again questioned the prosecutor, he stated on the record that he had no knowledge of her whereabouts.

    What sanction? The prosecutor pointed to his record as an attorney, a reserve officer, and a church member. On the other hand, he had once before been given a letter of caution for prosecutorial misconduct that resulted in the reversal of a conviction. And in this case, the "conduct strikes at the heart of his credibility as a prosecutor and an officer of the court," he did not take opportunities to correct his false statement, and his action required a costly second trial. The court suspended him from practice for three years. Matter of Stuart, 2005 NYSlipOp 06936 (App. Div. 2d Dept. Sept. 26, 2005.)

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    Judges Question Need for Expert Witnesses,

    [TIP] BNA's Expert Evidence Report summarized comments by judges at an employment law CLE in Minneapolis. Judges Question Need for Expert Witnesses. Some of the key points:

    • "Employment attorneys tend to overuse both experts and Powerpoint presentations."
    • Most employment cases don't need experts, but a statistician may be needed for personal injury cliams.
    • Visual aids can be useful -- in moderation.
    • Judges appreciate having the aids reproduced on letter-size paper or in a binder.
    The 32nd Labor and Employment Law Institute was sponsored by the Labor & Employment Law Section of the Minn. State Bar Ass'n, the Minneapolis offices of the NLRB and the EEOC, and Minnesota Continuing Legal Education.

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    Association of American Law Schools Annual Meeting

    This year's Association of American Law Schools Annual Meeting had as its theme "Empirical Scholarship: What Should We Study and How Should We Study It?" Many interesting studies were reported. I heard panels on evidence, civil procedure and juries, and medical malpractice reform. In the next couple of days I'll summarize some of them and provide links to more information.

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