Monday, July 31, 2006

Hearing on Medical Liability

The Senate Committee on Health, Education, Labor, and Pensions held a hearing, Medical Liability: New Ideals for Making the System Work Better for Patients on June 22. The following witness statements are available online:

  • David Studdert, Associate Professor of Law and Public Health, Department of Health Policy and Management, Harvard University School of Public Health -- Outlines "a series of problems with the performance of the medical liability system," presents "findings from a recent study by [his] research group," and discusses "some promising reforms, including ones currently before Congress, and their potential impact."

  • Philip Howard, Founder and Chair, Common Good -- Advocates demonstration projects of administrative health courts. These courts would have administrative law judges who would specialize in health cases; neutral experts to advise the courts; a schedule to determine noneconomic damages; a "liberalized standard of recovery based on whether the injury should have been avoidable"; transparent procedures designed to resolve claims with minimal time and legal cost; connection to a regulatory department.

  • William M. Sage, Professor of Law, Columbia Law School --
    The existing malpractice system potentially compromises access to health care, reduces its quality, and increases its cost for three principal reasons. First, there is a two-sided mismatch between actual negligence and the threat or event of litigation. Many claims turn out not to be justified, but rates of medical error are disturbingly high, and most avoidable injuries go uncompensated.

    Second, the process for resolving disputes is appalling. * * *

    Third, conventional malpractice litigation, and conventional malpractice insurance, focus on individual physicians rather than the systems of care in which they practice. * * *
  • Richard Boothman, Chief Risk Officer, University of Michigan Health System -- Describes the University of Michigan's experience with changes in its claims processing.
    In twenty two years of practice, not a single client ever asked me what they could learn from the cases I handled for them. Driven by that realization, I was convinced that the University could not only save money in the short run through smarter claims management, but reduce future patient claims by learning from our patients’ complaints.
  • Susan E. Sheridan, Co-Founder, President, Consumers Advancing Patient Safety (CAPS) -- Recounts her family's experience with two significant medical errors and the resulting litigation.

  • Cheryl Niro, American Bar Association, Standing Committee on Medical Professional Liability -- Opposes "health courts"; supports mediation, negotiated settlements when they are voluntary.

  • Neil Vidmar, Russell M. Robinson II Professor of Law, Duke University School of Law -- presenting results of empirical research, challenges medical malpractice "myths"; opposes administrative health courts.

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Graphic by mw.

Apologies and Early Settlement Offers

Some hospital systems and insurers have adopted policies of apologizing when medical mistakes have been made and acting quickly to settle. Evidence is emerging that the approach works. For instance, the University of Michigan started the policy in 2002 and has seen the number of claims drop each year; meanwhile, its time for processing claims and its litigation costs have been cut in half. - Emerging Med-Mal Strategy: 'I'm Sorry', Nat'l L.J., July 24, 2006. (Details of the Michigan study are in the chief risk officer's testimony before the Senate Comm. on Health, Education, Labor, and Pensions.)

An advocacy group promoting this approach is The Sorry Works! Coalition, whose website offers various fact sheets, links to news stories, and other information.

Many states, including Washington, have legislation that allows health care providers to apologize without having their apologies be admissible as evidence in a civil suit.

On the federal level, Senators Hillary Clinton and Barack Obama have introduced S. 1784, the National Medical Error Disclosure and Compensation Act (National MEDiC Act). According to the Congressional Research Service summary, the bill

Requires the Director of the Office to establish and maintain a National Patient Safety Database to receive nonidentifiable patient safety work product.

Requires the Secretary, * * * to establish the National Medical Error Disclosure and Compensation (MEDiC) Program to provide for the confidential disclosure of medical errors and patient safety events, reduce preventable medical errors, ensure patient access to fair compensation for medical injury due to medical error, negligence, or malpractice, and reduce the cost of medical liability for health care providers.

Requires Program participants to: (1) spend savings from the Program on reducing medical liability premiums or on activities to reduce medical errors; (2) report to a patient safety officer any medical error or patient safety event or any legal action related to the medical liability of a health care provider; (3) report to the patient any medical error that resulted in harm; and (4) offer to negotiate compensation with the patient and offer to provide an apology.

* * *

Requires the Director to analyze: (1) patient safety data to determine performance and systems standards, tools, and best practices for health care providers; (2) the medical liability insurance market to determine legal costs related to medical liability, factors leading to such legal costs, and the success of any state reforms; and (3) patient safety data to examine cases that were not successfully negotiated through the Program.
The senators presented their position in the New England Journal of Medicine: Hillary Rodham Clinton & Barack Obama, Making Patient Safety the Centerpiece of Medical Liability Reform, 354 New Eng. J. Med. 2205 (May 25, 2006).

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Plaintiffs Attorneys Jockey for Backdating Cases

Dozens of civil suits have been filed against companies for backdating executive stock options. For more on this flurry of shareholder derivative actions, see - Plaintiffs Attorneys Jockey for Backdating Cases, N.Y.L.J., July 24, 2006.

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Fees Cut for Incompetence

A federal judge denied an attorney's application for legal fees for his work on behalf of the plaintiff in settling a med mal case for $2.4 million. First, the judge found that the lawyer's application for $428,000 in fees and expenses was fabricated. Second, he said that even if the appeals court found no ethical misconduct, the lawyer should get no more than $100,000 "because of the 'grossly incompetent and inexplicable manner in which [he] conducted himself' after the settlement was reached." - Judge Denies Fee, Calls Legal Work 'Incompetent', N.Y.L.J., July 25, 2006.

"Over the last 21 years, I have overseen a fair number of infant's compromise cases, ranging from trip and fall cases to those involving serious brain damage with settlements reaching into the millions of dollars," Korman, the chief judge of the Eastern District, wrote in D.F. v. Mt. Sinai-NYU Medical Center Health Systems, 04-CV-1507. "The lawyers in those cases earned their fees by the settlements they achieved and by post-settlement work that Mr. Goldman failed to provide. I am not going to allow him to be compensated in the same way as attorneys who do their job."

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More on the KPMG Attorneys Fees Issue

The controversy over KPMG and attorneys fees continues.

A little review: Accounting firm KPMG and some employees were being investigated for allegedly illegal tax shelters. KPMG cooperated with the investigation and, at the urging of the prosecutors (following the Dept of Justice's "Thompson Memorandum") capped its payment of attorneys fees for the employees under investigation. In the subsequent criminal prosecution of the employees, they said that Justice's pressuring KPMG to cut off their attorneys fees infringed their right to counsel. Judge Lewis Kaplan (S.D.N.Y.) agreed. He encouraged KPMG to pay and suggested the employees sue if KPMG did not pony up.

Now KPMG says Kaplan lacked jurisdiction. KPMG was not a party to the proceedings and didn't have an opportunity to cross-examine witnesses. In any event, the employees should be bound by their employment contracts, which specify that they must arbitrate all disputes with KPMG. On the other hand, Judge Kaplan says that arbitration might delay the start of their criminal trial. - KPMG Challenges Kaplan's Jurisdiction in Fee Dispute, N.Y.L.J., July 31, 2006.

Last week, "Kaplan, in United States v. Jeffrey Stein, S105 Crim. 0888, ruled that federal prosecutors coerced two ex-employees into giving statements at proffer sessions, and he refused to allow the government to use those statements at a trial scheduled for January." Federal Judge Finds KPMG Employees Coerced, Suppresses Statement, N.Y.L.J., July 28, 2006.

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Judge Rejects Executive's 85-Year Guideline Sentence as 'Travesty of Justice'

A federal judge in New York has defended a non-guideline prison sentence for a former business executive convicted of conspiracy and securities fraud, saying to rule otherwise would be a "travesty of justice."

In May, Southern District Judge Jed S. Rakoff sentenced Richard P. Adelson, the former president of cancer diagnosis company Impath Inc., to 42 months in prison, rather than 85 years as federal prosecutors had suggested in papers. He also ordered $50 million in restitution.

The government filed a notice of appeal, and the judge this month issued a sentencing memorandum explaining his decision. - Judge Rejects Executive's 85-Year Guideline Sentence as 'Travesty of Justice', N.Y.L.J., July 31, 2006.

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Friday, July 28, 2006

Courthouse Security

A 310-page manual, Security for Court Interpreters (2006), addresses a wide range of dangers, from assaults to natural disasters. It is aimed at interpreters (it was presented at the conference of the National Association of Judiciary Interpreters and Translators in May), but the explanations of security measures are equally applicable to most people who work in courthouses.

Local note: under the heading "Earthquake Risks Are Real" there are two pictures from the King County Courthouse following the Nisqually Earthquake of 2001 (pp. 261-62). Now I remember why the courthouse needed extensive renovations and seismic retrofitting...

A couple of interesting pieces from the manual's bibliography:

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Court Administrator Job

Washington State is looking for a new Court Administrator (i.e., the head of the Administrative Office of the Courts). The search is through the National Center for State Courts. Here's the position announcement.

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Thursday, July 27, 2006

Foster Father Charged with Abuse

Last month, a former foster father, Enrique Fabregas, was charged with three counts of child exploitation and one count of possession of child pornography. Alleged victim of sex abuse says threats bought silence, Seattle Times, June 13, 2006.

DSHS had had 25 complaints about Fabregas; 8 alleged sexual abuse or exploitation of the children in his care. Previous complaints against foster father ignored, Seattle Times, July 26, 2006.

"Fabregas pulled the wool over the eyes of DSHS," said David P. Moody, an attorney representing [two alleged victims, sisters who are now 19 and 18]. "Unbelievably, DSHS was charmed by this man to the detriment of these vulnerable young girls."
Id. In earlier cases, Moody has successfully the state on behalf of vulnerable adults and children under the state's care -- for instance, developmentally disabled young men who were abused while in a state-licensed facility. Moody is also a UW Trial Ad instructor.

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Wednesday, July 26, 2006

Marriage Equality Case

This morning the Washington Supreme Court handed down its long-awaited decision in Andersen v. King County. Reversing two lower courts (the case consolidated appeals from the King County Superior Court and Thurston County Superior Court), the court upheld the state's Defense of Marriage Act. For more information, see the Northwest Women's Law Center's Marriage Equality page.

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New Court Rules

The Washington Supreme Court adopted a lot of new and amended rules on July 10. Changes will become effective Sept. 1 (unless otherwise noted).

Of particular interest to trial lawyers:

  • CR 43, Taking of Testimony.
  • CRLJ 43, Taking of Testimony.
  • All of the Rules of Evidence (ER). (The big change is deleting the official comments.)
  • Most of the Rules of Appellate Procedure (RAP). (I don't know what the major changes are.)
  • All of the Rules of Professional Conduct (RPC) (a complete review).
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Sunday, July 23, 2006

Murder/arson Suspect Claims Drunken Blackout

Last week the local news had a tragic story about two women and two children who died in a house fire in Kirkland. One station reminded viewers of the importance of smoke alarms. And then came the news that the victims had been stabbed to death and the fire had been arson. The police have arrested a suspect, Conner Schierman, a 24-year-old neighbor who said -- after being Mirandized -- that he woke up from a drunken blackout to find himself in the house with covered with blood. Did drunke blackout lead to Kirkland deaths?, Seattle Times, July 21, 2006.

Trial Ad instructor Scott O'Toole is the prosecutor on the case. According to the newspaper article, he doubts the story of a blackout.

So far, detectives have no motive for the crime and have uncovered nothing to link the suspect to the victims.

"It is going to be extremely difficult to determine motive," said O'Toole, the prosecutor. "The damage to the victims is pretty horrendous and pretty complete."
Students may have heard career counselors cautioning them that MySpace pages can be viewed by anyone, including employers. Well, it's not only employers -- in this case, the suspect's page has been read by prosecutors, Seattle Times reporters, and others who see on the newspaper's website. (The paper edited out the "Friend Space.")

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No Right to Counsel During Psych Eval

A psychological evaluation is used as evidence in a jury trial to determine whether someone is a sexually violent predator under RCW 71.09. The defendant has a right to counsel "[a]t all stages of the proceedings" -- so does that include the psychologist's examination? That's what a defendant argued -- but Division II answered No. In re Detention of Kistenmacher, --- P.3d ---, 2006 WL 1892425 (Wash. App. July 11, 2006)(Bridgewater, J.), Westlaw, Courts website.

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The Hon. Justice Bobblehead

The other day I mentioned The Green Bag with respect to good legal writing. The editors also have a flair for whimsy, as demonstrated by this article about the journal's bobbleheads of Supreme Court justices: Collectors give nod to justice bobbleheads, Seattle Times (reprinted from L.A. Times), July 23, 2006.

How about bobblehead trial lawyers? Whom would you like on your shelf?

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Friday, July 21, 2006

Expert Linguist

Linguists aren't the most frequently hired experts, but a linguist's testimony helped get John DeLorean an acquittal back in the '80s. See post by Roger Shuy at Language Log. Thanks for the lead to Susan McDonald at Legal Research & Writing.

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State Tells Judge to Leave Dogs at Home

The Michigan State Court Administrative Office told a judge near Detroit to stop taking her terriers (Lurch and Lizzard) to work with her. The judge said she had occasionally had the dogs at work since 2004 and had had no problems -- and, in fact, children and court employees had appreciated the dogs' presence. On the other side, some people had complained, and the agency wanted nothing to detract from the seriousness and formality of the courtroom. - State Tells Judge to Leave Dogs at Home, AP, June 13, 2006.

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Graphic by mw.

Bomb Scare Over Box of Evidence

An unattended box on the sidewalk outside Miami's federal courthouse looked suspicious, so two buildings were evacuated and the bomb squad blew up the box. It later appeared that the box had been left there by a federal agent after a trial ended and contained only paper and evidence. Oops. It's unclear whether the destruction of evidence will affect an appeal. - 'Suspicious Box' Blown Up Near Courthouse May Have Contained Criminal Evidence, Daily Bus. Rev., June 14, 2006.

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Jail for Smart-Aleck in Jury Pool

Attempting to get out of the pool for a capital case, a young man in Columbus said on a jury questionnaire that he had a "bad jonesin' for heroin" and had killed someone. In court, he refused to answer any questions seriously. He was indeed removed from the jury pool, but he was also sentenced to a night in jail for contempt. Man Jailed for Trying to Get Out of Jury Pool, AP, June 27, 2006 (

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Defendants Ordered to Stay Clear

Because they became "hostile and threatening" in the face of ongoing litigation against them, a California husband and wife were ordered to stay at least 100 yards from the plaintiff and the plaintiff's attorney. Read more about the incidents that led to this order: Court Sides With Stay-Away Request Filed by Attorney and Client, Recorder, June 29, 2006 (

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"You Can't Have Part-time Litigators"

Nassau County DA Kathleen Rice has laid off part-time atotrneys unless they agree to work full-time. Women's bar groups have been unsuccessful in dissuading her. She says that a district attorney's office requires a great time commitment. "You can't have part-time litigators," she said. Other New York district attorneys offices do allow some attorneys to work part-time. Under Fire, DA Defends Decision to Oust Female Part-Timers, N.Y.L.J., July 13, 2006 (

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Fight Over Attys Fees in Whistleblower Case

Taking a whistleblower case he deemed a long shot, an attorney in New Jersey had the client sign an agreement that would give the attorney both statutory fees and 50% of any damages recovered. After the case was over, the plaintiff sued his lawyer over the fees, and now a judge says that they were "presumptively unreasonable." Plaintiffs Lawyer Defends Pact That Piggybacked Statutory, Contingent Fees, N.J.L.J., July 14, 2006 (

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Greedy Trial Lawyer blog

Greedy Trial Lawyer is a legal blog with an attitude. It's main page includes this disclaimer"

This website is not to be confused with a lawyer website that showcases experience or skills and seeks new clients. GTL is the philosophical ruminations of an experienced trial lawyer who knows who he is and what he does and makes no apologies. He is willing to accept your apologies, however.
His posts are indexed into categories like "Desperate Defendants," "Gaming the System," and "In Your Face." In an early post, he explained:
We need to get one thing straight at the start. I am a Greedy Trial Lawyer, always have been and always will be. I sue the bastards, file frivolous lawsuits, clog the court system, drive doctors out of town, put corporations into bankruptcy, weaken the economy and increase the cost of health insurance. And, that is only a partial list.
Why I Am What I Am and Do What I Do, Nov. 2, 2005.

If you like sassy commentary on tort litigation served up with a big slice of irony, take a look at this blog.

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Thursday, July 20, 2006

ATLA drops 'Trial Lawyer,' adds 'Justice' to name

The ATLA membership voted to approve changing the organization's name to American Association for Justice yesterday. ATLA drops 'Trial Lawyer,' adds 'Justice' to name, West Virginia Record, July 19, 2006.

The ATLA website -- or at least the public portions of it -- is still silent on the name change. The "Press Room" section does not include the written statement from President Ken Suggs quoted in the article above.

Update: Robert Ambrogi comments on the name change.

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Wednesday, July 19, 2006

What Is Pro Bono?

When American Lawyer ranked firms for their pro bono work, it had to decided what counted and excluded a firm's unpaid defense of former Illinois Gov. Ryan on federal criminal charges. Comments by Robert J. Ambrogi ( are here.

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Prosecutors Overreaching

Carolyn Elefant discusses two examples of prosecutorial overreaching where the individual prosecutor asked the court not to name him in the opinion. She asks whether the lawyers should be let off the hook. A Bad Few Weeks for Prosecutors, - Inside Opinions: Legal Blogs.

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Visual Communication Style for Lawyers is Taking Off

David Swanner likes the visual communication style -- using a visual image as a hook for arguments -- for trial lawyers. South Carolina Trial Law Blog: Visual Communication Style for Lawyers is Taking Off. He recommends a book (Cliff Atkinson, Beyond Bullet Points: Using Microsoft PowerPoint to Create Presentations that Inform, Motivate, and Inspire and a couple of blogs on the topic.

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Writing Resources and Writing Samples

After Evan Schaeffer posted A Collection of Free Online Writing Resources, Carolyn Elefant asked for good writing samples, not just more guides. He obliged (The Illinois Trial Practice Weblog: By Popular Demand, a Writing Sample) with copies of the appellate briefs in a case he lost at trial then won on appeal. (The case involved a hospital's liability an employee's sexual abuse of a psychiatric patient and perjury by hospital witnesses.)


In addition to the writing resources in Evan's post, I suggest our guide, Legal and General Writing Resources.


Not of the resources listed in our guide are on the web -- but I for one still find books helpful and some of you might find a few worth the investment. (You can also visit a library, of course.) My own shelf above my desk includes Garner's Modern American Usage and The American Heritage Dictionary of the English Language, both of which I consult frequently.

Books are also how I have learned (and continue to learn) about writing -- rules, grammar, style, and tips. I think I was in college the first time I read Strunk and White's The Elements of Style (it's a slender book), and I've reread it several times. When I was admitted to the Eleventh Circuit, the court sent a copy, sending as well the message that the judges would like to see well-written briefs. Over the years, I've read other writing books, sometimes cover to cover and sometimes dabbling. Sometimes I've left one in the bathroom -- better to read a page or two of Safire than spend the time looking over one more mail order catalog.

Perhaps more important that reading books about language has been reading well-written material in other contexts. For instance, I may have read Stephen Jay Gould's books because I was interested in evolution and natural history, but I also read them because I enjoyed his writing style -- and by reading them, I developed my own stylistic taste. Lawyers can develop their feel for good writing not just by studying briefs, but by reading good writers in many fields.

The Green Bag's Recommendations

The Green Bag, which calls itself "an entertaining journal of law," not only publishes good original legal writing in each issue, but it also has launched an annual, The Green Bag Almanac and Reader, reprinting or excerpting what its panel deems to be the best legal writing of the previous year. The 2006 volume (the first) included law review articles, book chapters, cases, briefs, and more. A list of all the nominated pieces is at pp. 6-10 of this pdf. Trial lawyers, see especially Opinions & Orders (pp. 6-7) and Briefs & Motions (p. 8).

Our library has many original briefs and many are available online (see our guide), but I often caution people who want to find a brief to copy that that brief could have been written by the worst lawyer in the state -- or a good lawyer when he or she was having a bad day. Winning isn't the only measure. The Green Bag Almanac includes, for instance, Walter Dellinger's amicus brief in Rumsfeld v. FAIR, even though the side it supported lost 8-0.

Email and Blogs

If you like to get tips day by day, you can subscribe to several email lists. For example, Oxford University Press offers Garner's Usage Tip of the Day (entries from Garner's Modern American Usage) and New Oxford American Dictionary Word of the Day. There are also several blogs by copy editors discussing language and newspapers. See, e.g., A Capital Idea, whose post today links to several other language blogs.

Web Videos

Bryan Garner has interviewed dozens of judges and a few law professors and practicing lawyers about legal writing. Short video clips are available here. I haven't viewed them all, but the ones I've seen have been very interesting. Who better than judges to tell you what judges like -- or hate -- to see in briefs?

Bryan Garner, by the way, is the author of many books on English usage and legal writing, as well as the editor of the latest two editions of Black's Law Dictionary. Through his company, LawProse, Inc., he offers CLEs around the country.


Finally, for some examples of lawyers getting chewed out for sloppy research and/or bad writing, see Mary Whisner, When Judges Scold Lawyers, 96 Law Libr. J. 169-83 (2005). (This post started with Carolyn's request for good examples, but I can't resist mentioning the other end of the spectrum.)

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Two graphics my mw, one lifted from The Green Bag's website.

Tuesday, July 18, 2006

Do's and Don'ts of High-Tech Trial Presentations

Here are some tips on using technology in the courtroom from the director of information resources of the federal district court in Minnesota: Andy Seldon, Do's and Don'ts of High-Tech Trial Presentations, Law Technology News, July 6, 2006.

Thanks to Evan Schaeffer for the lead. He says, "It's a basic, though useful, article of the sort that can be reread each time you're gearing up for a new trial."

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Motion Hearings: Handing Cases to the Judge

Evan Schaeffer suggests you be prepared when arguing a motion to hand the judge a copy of a key case -- preferably with the good stuff highlighted. The Illinois Trial Practice Weblog: Motion Hearings: Handing Cases to the Judge.

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Monday, July 17, 2006

Preadmission Education

Starting this summer, applicants for the Washington State bar must complete four hours of approved preadmission education. (Generally this will be after passing the bar and before being sworn in; the requirement also applies to people being admitted through reciprocity with other states.)

Applicants may watch a video on WSBA's website (don't worry, you can watch it in segments). Chapters are:

  • Introduction and Maintaining a Balanced Life
  • Fundamentals of Law Office Management
  • Client Relations
  • Conflicts of Interest
  • Civility and Local Practice
The accompanying manual (in pdf) is 114 pages.

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'Law & Order' Meets the Law of Supply and Demand - New York Times

"Law and Order" junkies might be interested in this piece in the New York Times discussing the program's past, its spinoffs, and cast changes for next year: 'Law & Order' Meets the Law of Supply and Demand, NY Times, July 16, 2006.

Meanwhile, CBS will be advertising its fall lineup on laser-printed eggshells and puns: "crack the case" with CSI. For CBS's Fall Lineup, Check Inside Your Refrigerator, NY Times, July 17, 2006.

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Graphic by mw.

Sunday, July 16, 2006

Wash. Changes RPC

WSBA's Special Committee for the Evaulation of the Rules of Professional Conduct (Ethics 2003 Committee) reports:

By order dated July 10, 2006, the Supreme Court approved the proposed Ethics 2003 amendments to the Rules of Professional Conduct. In adopting the amendments, the Court modified the rules as proposed by the WSBA Board of Governors in a number of respects. The amended rules will be effective on September 1, 2006.
As the name indicates, the Ethics 2003 Committee has been at its work for some time. The changes it proposed -- along with comments about the changes and how they follow or vary from the ABA's model rules -- are on the Washington Courts website in a 230-page Word document.

Proposed changes included changes to Rule 3.3, Candor Toward the Tribunal. What do you do if your client wants you to offer false evidence? What if the client wants to testify falsely? What if you believe the client's testimony to be false but you don't know that it is? This is the rule for you.

The Washington Courts website does not yet have the text of the changes adopted last Monday, nor does it have a press release. I'll keep checking. I'm sure we'll see articles in the Washington State Bar News and Bar Bulletin summarizing the changes before they take effect Sept. 1 -- not to mention the mandatory ethics CLE hours everyone has.

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ATLA Changing Its Name?

The Association of Trial Lawyers of America will vote on Wednesday whether to change its name to the American Association for Justice. ATLA's president, Ken Suggs, sent a letter to members explaining that changing the name would help the organization reach the public:

Our research shows that if our message is about helping lawyers, we lose. On the other hand, if we're about getting justice and holding wrongdoers accountable, we win.
Trial lawyers to vote on changing name, Seattle Post-Intelligencer, July 15, 2006.

Of course, some critics are having fun with this.
"If I renamed a shark a 'kitten fish,' would I let my goddaughter play with it?" quipped Victor Schwartz, general counsel of the American Tort Reform Association, a group that wants to crack down on frivolous suits and put limits on jury awards.

A Washington Post columnist said that the name "American Association for Justice" "edged out runner-up suggestion 'Association for Apple Pie, Motherhood and the American Way,' or AAPMAW." Al Kamen, Just Don't Call Them the Suers, Wash. Post, July 14, 2006, at A19.

ATLA's 2006 Annual Convention is in Seattle, through Wed. July 18.

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Graphic by mw.

Friday, July 14, 2006

Virtual Heads

A team of psychologists has been studying the use of virtual heads (that is, images of heads generated using computers) for eyewitness identification. For instance, in one study, subjects watched video clips of human faces; later they looked at pairs of images to pick which one was of a face they'd seen in a clip. Some of the images were photos and some were screen-shots of virtual models. Jeremy N. Bailenson, Andrew C. Beall & Jim Blascovich, Using Virtual Heads for Person Identification: An Empirical Study Comparing Photographs to Photogrammetrically-Generated Models, 53 J. Forensic Identification 722-728 (2003).

The authors point to potential advantages of this technology over standard line-ups and photo arrays:

[U]sing virtual heads for conducting police lineups (as opposed to either live lineups or photograph lineups) has three major advantages. First, the witness or identifier has the opportunity to explore the suspect at any possible viewing angle or distance while maintaining complete anonymity. Second, by using morphing techniques, the designer of the lineup can easily manufacture an infinite set of distracter heads (i.e., the virtual foils in the lineup) that are dissimilar to the suspect’s head. Third, using animation sequences, the lineup conductor can render any facial expression or verbal utterance from the virtual head. Because of the advantages, it is possible to conduct lineups that are more realistic than when using mere photographs.
For more on virtual reality and eyewitness identification, see this page from the Research Center for Virtual Environments and Behavior (UC Santa Barbara), where authors Andrew Beall and Jim Blascovich are co-directors.

The lead author, Jeremy Bailenson, is at Stanford's Virtual Human Interaction Lab. He has also worked on projects using virtual reality in other courtroom applications, including witness preparation and scene re-enactment. See list of publications (the law-related ones are at the bottom of the page).

Image from Research Center for Virtual Environments and Behavior. Used with permission.

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No Charges for Bystander Shooting

A recent gang-related shootout in Tacoma left a 17-year-old bystander paralyzed, but Pierce County prosecutors can't bring charges. They have charged the (alleged) first shooter with murder and assault for the people he killed and injured. However, the girl who was paralyzed was injured by a stray bullet fired in response -- and that shooter was legitimately acting in self-defense. If the bystander had died, the first shooter could be charged with felony murder, but there is no "felony assault." Girl caught in crossfire and in law's loophole, The News Tribune, July 11, 2006.

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Thanks to Lisa Kremer for the story. Graphic by mw.

Friday, July 7, 2006

Comparative Glimpses of Tort Regimes

Vacation was great. I didn't touch a computer and didn't see a legal publication. Nonetheless, tort law came up in three different contexts:

  • Our whitewater rafting guide talked about a colleague who works as a guide in Montana in the summertime here, and then goes to New Zealand to raft when it's summer there. Our guide reported that, because of people's propensity to sue over injuries here, no U.S. rafting companies will take tourists on Level V rapids, but things are different in New Zealand, and they will take rafts over dramatic drops where all the riders can do is hold on and lean back as the raft plummets. (We were on a Level II/III tour, and that was just fine with me.)
  • I met a doctor, also on vacation, who practices in Canada but used to practice in the States. This doctor perceived that Americans are much more prone to sue if something goes wrong (even when the doctor is practicing good medicine).
  • In the car coming home, we heard a Marketplace story about the compensation paid by the UK government to victims and survivors of the subway and bus bombings a year ago. Some people are highly critical of the government, noting that the compensation is just a small fraction of the awards paid after the 9/11 attacks in the U.S. Marketplace: Anger lingers after London bombings
I don't have a profound point to make here, but it was striking to hear these contrasts between other common-law jurisdictions and our own.

And now I'm off to my meeting in St. Louis. . .

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