Thursday, April 26, 2007

Supreme Court Death Penalty Case

The Supreme Court yesterday overturned the sentences of three men on Texas's death row. The issue involved jury instructions that did not provide for the jury to weigh mitigating factors. The Court had said the instructions were impermissible and indeed Texas stopped using them in 1991. These men were sentenced before then -- so should they have new sentencing hearings? Death Sentences Rejected, Wash. Post, April 26, 2007.

The case is Smith v. Texas, 05-11304, slip opinion (April 25, 2007).

For commentary, see the links in Sentencing Law & Policy.

Amnesty Reports High Rape Rate on Reservations

Amnesty International released a report this week decrying the high rape rate in Indian Country. Tribal law enforcement agencies don't have adequate resources to patrol and respond quickly. Moreover, the tribe lacks jurisdiction if the perpetrator is not an Indian. Crimes may be prosecuted by local, federal, or tribal authorities. Low enforcement and prosecution contributes to underreporting and more offenses. Native American Women Face High Rape Rate, Report Says, Wash. Post, April 26, 2007.

The report is Maze of injustice: The failure to protect Indigenous women from sexual violence in the USA (AI Index: AMR 51/035/2007) (April 24, 2007). Amnesty's summary is here.

Reminder: 2007 is the first year that Indian law is a subject that may be covered in the Washington State bar exam.

Spam Class Action

A lawsuit was filed on behalf of some 20,000 people who use an anti-spam tool from a company called Unspam. Major Anti-Spam Lawsuit Filed in Virginia, Wash. Post, April 26, 2007.

The plaintiffs hope to shut down one or more harvesters of email addresses. But who are they? Right now they are identified as John Doe. The plaintiffs will try to subpoena records of Internet service providers to track them down.

(Here's a startling statistic from the article: over 80% of email sent globally is spam.)

Phil Spector Trial Opens

A Noir Opening to Phil Spector Murder Trial, Wash. Post, April 26, 2007:

Prosecutor [Alan] Jackson's presentation was as crisp as the part in his hair, and at times he employed the language and cadence of an L.A. noir novelist. "On February 3, 2003, a single gunshot cracked the silence of the normally very quiet community of Alhambra, California," he began, at the "almost palatial home" Spector lives in, a hilltop mansion he calls "the castle," where Clarkson died from a bullet to the head from a .38 Colt Cobra. "Lana Clarkson will have to tell her story from the grave," Jackson said.
The judge ruled that the prosecution may introduce testimony from four women about Spector's previous incidents of pointing a gun at the face of a date.

How would you have argued the motion in limine about the past incidents? See Spector's pas gun play admitted in trial, CourtTV, May 24, 2005.
Superior Court Judge Larry P. Fidler acknowledged that allowing the evidence was "a dangerous path to go down," but he concluded the incidents seemed to illustrate the state's theory in the case.

A prosecution motion filed in February said the incidents showed Spector had a "common plan" of using guns "to intimidate women into staying with him."

* * *

Fidler refused to allow six other incidents to be introduced as evidence.
For way more about this celebrity trial, see CourtTV's page on the trial, which includes articles, pictures, and streaming video.

FBI Civil Rights Investigations Down

This morning's P-I has a long report looking at FBI investigations of civil rights cases this decade. The numbers are bad: the number of cases opened is down about two-thirds. There are fewer agents dedicated to civil rights, apparently because of the agency's greater emphasis on terrorism investigations. Paul Shukovsky, Tracy Johnson & Daniel Lathrop, FBI opening far fewer civil rights inquiries, Seattle P-I, April 25, 2007. (The date on the web page is April 25 because it was posted last night. It really is this morning's top story.)

"Civil rights" cases include police misconduct and hate crimes. Both categories are down.

Two former FBI officials said [FBI Assistant Director Chip] Burrus cut back on civil rights investigations because the Justice Department prosecuted less than 10 percent of the cases the bureau opened.

"A lot of us felt like they were causing us to spin our wheels on civil rights cases," the retired official said. "We understood the deterrent value of opening (police-abuse) cases and the calming impact on the community."
The reporters describe one local (Buckley, WA) police misconduct case the FBI declined to pursue, but note that the nationwide trend of decreased investigations is less noticeable here than in parts of the country where federal civil rights prosecutions have been more common.

Federal investigations are only part of the picture. For instance, here in King County, the local prosecutors have filed more than 120 malicious harassment cases in the last 10 years. So maybe the FBI's declining numbers are in part because local law enforcement is doing a better job. (No one suggests that hate crimes have gone away. Thousands are reported each year. A study by DOJ estimated that there 200,000 a year.)

Wednesday, April 25, 2007

Mental Health and Plea Deal

A man who killed a convenience store clerk pleaded guilty to second-degree murder on Monday.

Newspaper accounts give us both sides of plea bargaining. The prosecutors were willing to accept a plea because they "felt that there was a significant risk that if this went to trial, a jury might find he [Bistryski] was insane at the time he committed the murder," according to King County Deputy Prosecutor (and UW Trial Ad instructor) Nelson Lee. The Man who killed Kenmore clerk with deputy's gun pleads guilty, Seattle Times, April 23, 2007.

On the other side: "Defense attorney Daron Morris, who was pursuing an insanity defense for Bistryski, said his client agreed to the plea deal because even if they won an insanity defense, it would have meant an indefinite civil commitment to a mental hospital." Clerk's slayer pleads guilty, faces 19 to 27 years in prison, Seattle Times, April 24, 2007.

After the shooting, the defendant had told police that he shot the clerk because the clerk didn't believe his stories about a nebula and black hold that were threatening people. The defendant is now receiving medication for his mental illness.

This story has a couple of stories within it. In addition to the plea bargain story, there's also a story about a sheriff's deputy. The defendant got his gun from his boyfriend, the deputy, after the boyfriend went to sleep, leaving his service weapon on the counter. The deputy resigned three or four months after the shooting. Sheriff Sue Rahr said that otherwise he would have been fired for a number of rule violations. Id.

Kids without Counsel

Who speaks for the kids in dependency court?, Seattle Times, April 25, 2007:

When Washington children are removed from their homes due to abuse or neglect, their parents are represented by a lawyer in dependency court. The state has a lawyer at the table, too.

The kids, however, don't have that automatic right to counsel. In fact, at least one-third of Washington children who are removed from their homes don't have anyone at all to speak for them in court, according to a statewide work group studying the issue.
The work group is chaired by Prof. Lisa Kelly, who is the director of the Children and Youth Advocacy Clinic, which represents children and teens in such cases. Kelly also teaches family law and is the coauthor of a new casebook on adoption law.

Update (April 26): A colleague from Maryland wrote to me about her state's efforts in this area. The Maryland Judiciary has a Foster Care Court Improvement Project, including a subcommittee on Representation, Practice and Procedure. In 2001, the FCCIP issued Guidelines of Advocacy for Attorneys Representing Children in CINA and Related TPR and Adoption Proceedings. Two months ago FCCIP issued a best practices manual for dependency and adoption cases.

Thanks: Pamela Gregory

Tuesday, April 24, 2007

WSHRC Forum - Immigrant & Refugee Women

The Washington State Human Rights Commission is having "a public, educational forum," Immigrant and Refugee Women, this Thursday, April 26, 2007, 7:00-9:00 p.m., Highline Community College, Bldg 8 (Student Union Building).

Invited speakers and guests include Refugee Women’s Alliance; Refugee Federation Service Center; WA State Coalition Against Domestic Violence; US Equal Employment Opportunity Commission; Asian Pacific Islander Women & Family Safety Center; Kent Police Department; Cambodian Women’s Association; and others representing Somali and Eastern European community groups.

The WSHRC conducts forums in locations throughout the state of Washington. We use these meetings as an opportunity to hear from the public, human and civil rights organizations, local governments, educators, community leaders, activists, and others to create partnerships with the community, as well as inform the public about the Washington Law Against Discrimination. The results of these partnerships help further the WSHRC’s mission to prevent and eliminate discrimination in the state of Washington.
Press release, April 23, 2007.

What's the trial ad angle? Obviously, many of the issues discussed (employment discrimination, domestic violence, etc.) end up in court. Moreover, something like this could be good for building cultural competence generally. No matter what your practice area, you may have clients, witnesses, or jurors from our community who are immigrants or the children of immigrants.

"Cultural competence" seems to have received more attention in medicine than in law. See Georgetown's National Center for Cultural Competence. For a look at legal issues, see Joanne I. Moore & Margaret Fisher, eds., Immigrants in the Courts (Seattle: University of Washington Press, 1999), KF8725 .I47 1999 at Classified Stacks.

The Washington State Coalition for Language Access is a group of legal and social service providers who see "the lack of adequate interpretation and cultural awareness as a major barrier to immigrant survivors accessing help."

Thanks: Michele Storms.

Saturday, April 21, 2007

Remember to Take the Survey

Please remember to take the survey about Trial Ad Notes! Whether you're a regular reader or this is your first visit, I'd be very interested in your thoughts.

There have been 23 responses so far.


Notes from RodgersFest

I'm sitting in on much of a two-day conference here at the UW: Of Salmon, the Sound, and the Shifting Sands of Environmental Law — A National Perspective. It honors "the first forty years" of Bill Rodgers's teaching career and presents an all-star cast of environmental lawyers, law professors, and others (e.g., a geomorphologist who spoke yesterday afternoon). We've heard a number of great anecdotes along with fascinating substance.

Classic Cross Examination

Prof. Rodgers is an accomplished academic: a prolific writer and beloved teacher. But he's also been involved in significant litigation. Hence the link to trial practice. Yesterday he recounted his greatest cross examination. It was in phase two of United States v. Washington, the huge case about Indian fishing rights that has been ongoing for over thirty years. At one point, the state was arguing that "fish" in the Indian treaties did not encompass hatchery salmon. Rodgers was questioning a state witness (perhaps from the late Department of Game):

Rodgers: Does it have scales?
Witness: Yes.
Rodgers: Does it swim?
Witness: Yes.
Rodgers: Does it live in the water?
Witness: Yes.
Rodgers: Is it referred to as a "fish"?
Witness: Yes.
Rodgers: 'Nuff said.

Products Liability Litigation for the Environment

Yesterday I was impressed by "The Common Law Will Never Move -- Except Where It Pinches Too Tightly," by Michael Axline of Miller Axline & Sawyer, Sacramento. (There's a profile of Axline on the U.S. board page for E-LAW, the Environmental Law Alliance Worldwide.)

Axline began by observing that the common-law cause of action that has traditionally been used by environmentalists, but he thinks has products liability has great promise.

Axline's clients include big water companies who supply water to all of us. Traditionally, they have passed the costs of treating water on to consumers in their rates, but lately they have been trying to recoup some of those costs from the corporations whose products make extra treatment necessary. For example,
  • Jury says chemical firms owe city $175 million, S.F. Chronicle, June 15, 2006:
    A jury has hit two chemical companies with $175 million in punitive damages for failing to warn dry cleaners about the dangers of a solvent that contaminated underground water in the city of Modesto.
    Some litigation notes from Axline:
    • In preparation for what was expected to be a very long, complex trial, they began with a jury pool of 1,000 to get 12 jurors and 12 alternates. The joint juror questionnaire included
      • What is the pollution problem that most concerns you in 2006?
      • Have you, a family member or someone close to you ever had any problems with any kind of pollution?
      • How important is a clean environment to you?
      Out of 1,000 questionnaires, only about 50 weren't favorable to the the plaintiffs' side.
    • The jury returned a special verdict form finding the defendants liable on count after count after count. After that, the defendant chemical companies still refused to settle. And then the jury was asked to come back with dollar amounts -- and returned a very big verdict.
  • 2 oil giants deceived public on MTBE's hazards, jury finds, S.F. Chronicle, April 17, 2002:
    In a landmark case, a San Francisco jury has found that gasoline with the additive MTBE is a defective product and that two major oil companies were aware of the chemical's dangers but withheld the information when they put it on the market.

    The Superior Court jury made its finding in a product liability case brought by the South Tahoe Public Utility District over contamination of the district's groundwater. The district sued in 1998 after MTBE pollution forced it to close a third of its drinking water wells.

    In its verdict Monday, the jury said Shell Oil Co., Lyondell Chemical Co. (formerly Atlantic Richfield Chemical Co.) and Tosco Corp. (now part of Phillips Petroleum) had placed a defective product on the market when they began selling gasoline with MTBE, or methyl tertiary butyl ether.
    Discussing this case, Axline showed us PowerPoint slides of documents he used to show the companies' awareness of the risks, going back years before the companies publicly acknowledged any problem. Because of the lawyers' able work in discovery and in presenting that evidence, the jury even found that the companies acted with malice.
Axline also discussed a pending case in Los Angeles Superior Court in which Nicaraguan workers are suing over a pesticide that caused sterility in men who worked in banana plantations. One defendant (Amvac Chemical Corp.) settled with 13 workers for this week. Pesticide company settles sterility suit for $300,000, L.A. Times, April 16, 2007. Dow Chemical Co. (who, with Amvac, manufactured the pesticide) and Dole Fruit Co. (who used the pesticide) remain in the case, which is scheduled to go to trial next month. They deny that the pesticide harmed the workers. Again, Axline has some telling documents from discovery. We'll have to watch to see what the jury makes of the evidence.

More Cross Examination

Just now another speaker shared a story about cross examination. When James P. (Bud) Walsh was a student (he has both a JD and an LL.M. in Law and Marine Affairs from the UW), Bill Rodgers took him along to an administrative hearing (the state air pollution control board) about the Asarco smelter in Tacoma. With little or no warning, Rodgers told Walsh to handle the cross examination -- he had to leave to go teach a class. Walsh at that point did not know the first thing about cross examination or evidence. But Rodgers had left him with a pile of documents (obtained via Ralph Nader) showing that the company's plan to deal with its pollution by building its smokestack higher would not be effective. So Walsh went through the pile, asking the witness, "What about this? What about this?" The attorneys for the company -- in from a big firm in DC -- were objecting right and left. "No foundation!" "Inadmissible!" After the documents were all on the table, the administrative law judge sort of shrugged . . . and said he'd allow them all! It worked out for the student in this case, but I bet most students would agree that they skills training in Trial Ad and clinics is better than "sink or swim!"

Career Advice and an International View

One of the last speakers was John Bonine (professor at the University of Oregon and the cofounder of its environmental law clinic, the first in the nation). His topic was "Public Interest Litigation: The Hope, the Reality, The Future."

He estimated the numbers of environmental lawyers for corporations (70,000, I think), for federal, state, and local government (2-3,000), and for public interest groups (750, as I recall). (Alas, I was without notetaking tools at the time.) He said that for a long time he was "credentialist" -- telling his students who wanted to practice public interest environmental law that they really needed to get good grades, be on law review, etc., so they could get one of the scarce jobs at the Environmental Defense Fund, EarthJustice, or another public interest group.

But now he thinks that that isn't the best advice. After all, if any one student gets that rare job, all it means is that another student doesn't get it -- it doesn't mean there are any more lawyers out there fighting the good fight. Now he's excited by the possibilities of "private public interest practice," often possible for lawyers in solo or small firm practice. For instance, one lawyer wrote to him that he wasn't able to take on pro bono environmental cases when he was at a large law firm, because there were inevitably conflicts with other clients, but now that he's in an antitrust boutique firm, he can. Other lawyers might be able to do their pro bono work because their other clients -- employment discrimination plaintiffs, criminal defendants, or accident victims -- are not the sort that will pose any conflict of interest when the lawyer represents plaintiffs suing, say, a mining company.

The commenters were Karl Forsgaard, now with the Washington Forest Law Center but for many years in private practice, and Rachael Paschal Osborne, with the Center for Environmental Law and Policy. When Forsgaard was at a big firm, he was able to take on pro bono work because of the prospect of fee recovery under the federal Equal Access to Justice Act. The cases he was most involved with involved keeping all-terrain vehicles out of wilderness areas. Not only did the cases not pose conflict of interest problems, but they also didn't interfere with "client relations." The firm represented timber companies, but it turned out that they were also opposed to the all-terrain vehicle uses. Forsgaard left the firm to be in-house counsel (for the company that makes Sonicare toothbrushes). Because of time constraints, he limited his pro bono work to recruiting other lawyers to take on cases. Later, he was in solo practice, working out of his home (using our law library by the way -- a law library open to the public is a good resource!) and was able to support himself with the cases that were elible for fee recovery. Paschal is in a tougher position, since her litigation focuses on water law, where there are not attorneys fee statutes, but her small organization manages to stay afloat.

I really enjoyed a short video clip that Bonine showed, illustrating that the U.S. doesn't have a monopoly on public interest lawyers. Environmental lawyers from Papua New Guinea, Israel, the Philippines, and Jamaica -- all women, by the way -- showed tremendous passion and commitment in speaking of their work. At least two of them spoke of their economic sacrifices in their chosen field -- and said that they were more than compensated by being able to sleep at night and knowing that they were working for what really mattered to them.

I believe they were interviewed last month at the Public Interest Environmental Law Conference in Oregon. Bonine also spoke of this conference as an example of the amazing things law students are doing. This was the 25th annual conference and from the program it looks amazing. It brought in people from indigenous communities and less developed nations -- and took care to include on the last page of the program some "Guidelines for Cross-Cultural Communication."

Rodgers photo from conference webpage. Faucet photo from the EPA. Asarco smelter smokestack photo from Washington Department of Ecology.

Thursday, April 19, 2007

Empirical Study of "CSI Effect"

There's been a lot of talk about a "CSI Effect" -- prosecutors say jurors are unwilling to convict without high-tech evidence. On the other hand, at least one attorney says there's a reverse CSI effect: jurors who like the show will believe any darn thing a forensics expert says. And I heard a forensic expert say he welcomes the effect of jurors understanding a little more about science. (See earlier posts.)

Now some social scientists have conducted an empirical study: Donald Shelton, Young Kim & Gregg Barak, SSRN-A Study of Juror Expectations and Demands Concerning Scientific Evidence: Does the 'CSI Effect' Exist?, forthcoming in Vanderbilt Journal of Entertainment & Technology Law. [Update (March 27, 2008): The published version is at 9 Vand. J. Entertainment & Tech. L. 331 (2006). You can download a copy here.] Here's the abstract:

Many prosecutors, judges and journalists have claimed that watching television shows like CSI have caused jurors to wrongfully acquit guilty defendants when no scientific evidence is presented. This is the first empirical study designed to investigate whether the "CSI effect" exists.

This survey of 1027 persons called for jury duty in a State court looked at jurors' television viewing habits, their expectations that the prosecutor would produce scientific evidence, and whether they would demand scientific evidence as a condition of a guilty verdict.

While the study did find significant expectations and demands for scientific evidence, there was little or no indication of a link between those preconceptions and watching particular television shows. The authors suggest that to the extent that jurors have significant expectations and demands for scientific evidence, it may have more to do with a broader "tech effect" in our popular culture, and that the criminal justice system must adapt to accommodate jurors' expectations and demands for scientific evidence.
Update (March 27, 2008): Judge Donald E. Shelton, one of the authors of the study, wrote a shorter piece about it in the National Institute of Justice's NIJ Journal, March 17, 2008: The 'CSI Effect': Does It Really Exist?. Thanks: WisBlawg.

Wednesday, April 18, 2007

Take the Trial Ad Notes Survey!

I began Trial Ad Notes in January 2005. It's been running long enough to give the medium (blog) and the concept (a mix of information about trial practice with extra attention to Washington State) a good run.

So now it's time to evaluate it. Is it reaching an audience? Is it useful?

Whether you're a regular reader or this is your first visit, I'd be very interested in your thoughts.

Please take this quick survey.


PS When I logged on just now, I saw that I had 1,001 posts. If I weren't already planning to do my survey, a milestone like that might have inspired me.

Sunday, April 15, 2007

Hiring Handwriting Experts for Voir Dire

Looking for Clues in a Juror's 'John Hancock', Nat'l L.J. (, Feb. 27, 2007.

Handwriting analysis for jury selection has been used for decades, but the number of experts and attorneys who hire them has remained small. Some people remain skeptical about such work, but lawyers who count on it said it gives them a competitive edge.
The believers say that the handwriting analysts help them pick out a juror who will be a rebel who sticks to his beliefs, or a leader, or a detail-oriented person. They point to million-dollar verdicts they've won. Skeptics say: where's the science?

I remembered seeing a bit of a "Scientific American Frontiers" (hosted by Alan Alda) years ago, so I looked it up. As I remembered, Alan Alda and another man had handwriting samples tested and decided that the analysts didn't really capture their personalities. The conclusion, spoken by a neuroscientist named Barry Beyerstein:
There have been well over 200 studies now done by experts in the field of personality psychology and psychological measurement, personnel work and so on, where graphologists have participated knowingly, willingly, claiming that they were sure they could deliver the goods, and they've fallen flat on their faces. I mean, the bottom line, when you look at the whole gamut of research, is that this is like tea leaf reading, this is like palm reading, this is like astrology. It's a pseudoscience, it has no scientific credibility.
"Beyond Science?" transcript (premiered Nov. 19, 1997).

And how does this fit with the declining emphasis on handwriting? See In age of computers, is cursive writing cursed?, Seattle Times (reprinted from Minneapolis Star Tribune), April 14, 2007.

Another Pop Culture Story

Maybe because it's a Saturday, my eye has been caught by pop culture stories -- the employment law blog based on "The Office" and the odd John Waters series on Court TV. Here's a story that really puts the pop in pop culture: Frivolous Litigation: How Coke 'Punk'd' Its Lawyers, Fulton County Daily Report (, March 26, 2007. It's about those Coke Zero commercials where they have Coca-Cola executives asking the lawyers if they can sue Coke Zero for taste infringement. Apparently they really didn't let the lawyers in on the joke until they'd been filming for 20 minutes.

Hagens Berman Opens S.F. Office

Hagens Berman Sobol Shapiro, a Seattle plaintiffs firm that has handled many high-profile (and high-dollar) class actions) has opened an office in San Francisco, at least partly to handle antitrust and securities work. It also has two lawyers in Los Angeles and offices in Chicago and Cambridge, MA. Seattle Plaintiffs Shop Snatches Lerach Coughlin Partner for S.F. Office, The Recorder (, March 27, 2007.

Public Defenders, Prosecutors Face a Crisis in Funding

Public Defenders, Prosecutors Face a Crisis in Funding, Nat'l L.J. (, March 27, 2007:

A review by The National Law Journal shows that many public defender's offices across the country are strained beyond capacity or tipping into crisis.

Inadequate funding has led to constant turnover, staff reductions and spiraling caseloads.

* * *

In some jurisdictions, prosecutor's offices are not much better off. While salaries are slightly higher, prosecutors in states across the country are seeing the same budgetary stalemates and rising caseloads as their defense colleagues.
The article touches on examples in varied jurisdictions -- St. Louis, Chicago, Louisiana, New York state.

Malia Brink, indigent defense counsel for the Washington-based National Association of Criminal Defense Lawyers, said that exonerations help convey the importance of the issue:
"If you talk publicly about providing for criminal lawyers and better resources for lawyers, it's difficult to get people to understand why that's necessary. . . .

"But if you tell them the result of not providing those resources is that the wrong people go to jail and people who commit crimes remain free to commit other crimes, they understand the situation better. They show that public defense impacts public safety."

Saturday, April 14, 2007

The Point of Having Skilled Appellate Counsel

The judges should decide on the merits, right? So what difference does having skilled appellate counsel make? Howard Bashman suggests:

One of the most important ways that an experienced appellate lawyer can be of help, even before anyone stands up in court to argue the appeal, is by identifying the strongest issues that can be raised on appeal, by setting forth the facts in a manner that is faithful to the record but also helpful to the client, and by marshalling the applicable law in a way that most persuasively supports the result being sought on appeal. - May the Best Appellate Lawyer Win, Unless the Facts or Law Dictate Otherwise, April 9, 2007.

Did you know that Justice Blackmun used to grade the counsel who appeared before him? He scored current Justices Alito, Ginsburg, and Roberts "average." Let that be a comfort to the students who have noticed that their grades are not the straight As they were used to in college. You can still achieve a thing or two even if someone gives you an average score.

John Waters a Court TV Host

Court TV now has its first scripted TV series, about husbands who kill wives and wives who kill husbands. John Waters hosts the show as "The Groom Reaper." John Waters Brings His Singular Strangeness to New Court TV Show About Murder, AP (, April 9, 2007. Waters used to go to trials on his own, drawn by the drama.

Waters says the show's political incorrectness intrigues him. If it were a show about spoofing spousal abuse, he says, no one would go for it. But, somehow, murder is exempt. Simply by being there as the Groom Reaper, Waters says, "I'm enabling you not to feel guilty about enjoying it."
The AP writer (Caryn Brooks) adds:
And that's the problem. Waters' best work usually makes viewers feel guilty for enjoying it. Very, very guilty. "'Til Death Do Us Part" doesn't make us feel guilty enough.
The show's website is here.

Microsoft's Patent Team

An article takes a look Inside the Microsoft War Room, IP Law & Business (, April 9, 2007. The in-house team in Redmond is 4 attorneys and 4 paralegals. Outside counsel include a handful of firms from around the country.

Pet-Poisoning Cases

Lawyers Set to Argue New Legal Theory in Pet-Poisoning Cases, Nat'l L.J. (, April 10, 2007:

Class action litigators and animal law attorneys are joining forces across the country to sue Menu Foods Inc. and pet food distributors over the poisoning of dogs and cats, with some lawyers aiming to set a new precedent in recoveries for pet-owner clients.
They may get bigger damages awards than from similar past cases partly because the incident is unique in the high number of pets -- hundreds or perhaps thousands -- that have been injured or killed by the poisoning, the lawyers said.

In the past, U.S. courts have viewed pets as property and therefore mainly allowed damages for the cost of an animal, which is typically low for most cats and dogs, and veterinarian bills.

* * *

Some of the lawyers who have filed the lawsuits say they'll argue that pets are 'special property' that have an intrinsic value beyond market worth.
One of the lawyers quoted is Adam Karp, a UW alumnus and part-time faculty member, who has brought a case in the Western District of Washington.

Defense Fees Too High in Fla. Death Penalty Case?

Blasting 'Overpayment' of Bills in Murder Case, Fla. Judge Halves Defense Fee Request, Daily Bus. Rev. (, April 10:

A veteran Broward County, Fla., Circuit judge has called the legal bills in the capital murder case against a former federal informant one of the "worst" examples of "overpayment" of legal fees and costs that she's ever seen.

* * * With a trial date nowhere in sight, Judge Ana Gardiner slashed the fees requested by Fort Lauderdale, Fla., defense lawyer Barry Butin in half -- to $10,600 -- when Butin recently withdrew from the case after 14 months.

* * * Broward County officials have flagged the case of State v. Luis Martinez as a prime example of why Florida's -- and particularly Broward County's -- system of appointing private attorneys to represent indigent defendants when the public defender's office faces a conflict has far exceeded its budget.

Hiring New U.S. Attorneys Career Center - Who'd Want This Job, Anyway?, Nat'l L.J., April 10, 2007:

As officials in Washington spar over the recent firings of eight U.S. Attorneys, legislators and selection committees are interviewing candidates to fill positions that could last only about one year -- a condition that is limiting the field.

The candidates -- including federal prosecutors, former judges and private attorneys -- are vying for posts that, in addition to the unusually brief tenure, carry the daunting task of restoring order to offices thrown into disarray by the controversial firings.
The article says the three candidates in the Western District of Washington are interim U.S. Attorney Jeffrey Sullivan, former U.S. Rep. Rick White, and Michael Vaska, a litigation partner at Foster Pepper.

Lawyer's Rare-Postcard Hobby Gets Him Disciplined

Lawyer's Rare-Postcard Hobby Gets Him Disciplined, N.J.L.J. (, April 11, 2007. The lawyer omitted mention of his hobby of collecting and selling postcards when he sought long-term disability insurance because he was mentally impaired after having Lyme disease. What's the big deal? He was more than a dabbler, serving as treasurer of his local post card club, travelling to trade shows, and doing a lot of business on eBay. The bar gave him a reprimand for lying to obtain insurance benefits. It treated him leniently for a number of reasons, including his clean record as a legal services lawyer and the fact that he's been retired since 2001.

Meanwhile, the judge in his divorce case ordered him not to sell any of his postcards until the marital distribution was final, but he sold almost 1,400 and lied about the accounting. Yipes. For that he was charged criminally; he pleaded guilty to fourth-degree tampering with records and got three years' probation.

"Rainier National Park: Feeding Bears at Roadside," from exhibit, "Lying Lightly on the Land: Building America's National Park Roads and Parkways."

"The Office" Teaches Employment Law Lessons

Julie Elgar, of Atlanta's Ford & Harrison, has found a good way to may a blog about employment law more fun: she ties it to "The Office." Each Friday morning, "that's what she said" uses the previous night's episode as a starting point for a discussion of legal issues. A neat tag assigns a "Litigation Value" to the episode's central event -- e.g., estimating that Oscar's potential claim for sexual orientation discrimination might be worth $450,000.

For more about the blog's backstory -- why the firm thinks it's a good idea and how it used it as a marketing tool -- see Must-Sue TV Show Breeds Must-See Blawg, Marketing the Law Firm Newsletter (, April 11, 2007.

Big Settlement in IRS Malicious Prosecution Case

A Texas couple prosecuted by the IRS for tax fraud. After a five-week trial, the man (a criminal defense lawyer) was acquitted; charges against the woman (who practices family law) were dropped. They in turn sued the government (under the Federal Tort Claims Act) for malicious prosecution. Now the government has settled -- for $1.34 million. They say that paying their legal bills will use up the settlement: "Discovery was huge." Texas Lawyers Fought the IRS and Won, Texas Lawyer (, April 12, 2007.

More States Weigh 'Apology' Options for Doctors Leery of Lawsuits

More States Weigh 'Apology' Options for Doctors Leery of Lawsuits, (AP), April 12, 2007.

Congress Considers LRAP

Both houses of Congress are considering bills that would set up a loan repayment assistance program for state and local prosecutors and federal, state, and local public defenders. The program would be administered by the Justice Department. Bills Would Ease Student Loan Payments for Public Sector Attorneys, Nat'l L.J. (, April 16, 2007.

Most Canadians Favor US-Style Elected Judgeships

As many here wrestle with perceived problems in our system of electing judges, a new poll indicates that most Canadians rather like the idea of electing judges. Many Canadian legal scholars, however, are concerned about possible politicization of the bench. JURIST - Paper Chase: Most Canadians now backing US-style elected judgeships: poll, April 9, 2007.

Litigation Podcast

Our dog needs to run a lot at the off-leash park before she's tired. That leaves me with some time to pass while I'm walking and watching her, and lately I've been enjoying some podcasts. Today I listened to a couple of episodes of Litigation Podcast: Tips & Tactics for the Practicing Trial Lawyer, from the ABA Section of Litigation. They're professionally produced, well-paced, and easy to follow (even while walking and keeping an eye on the dog).

Today I listened to "Civility" (from Nov. 3), "A Little Client Service Goes a Long Way" (Oct. 6), and "How Can I Find a Job?" (Sept. 22). In the last, an advice columnist responds to a letter from a 3L who wants to work in IP or antitrust litigation but is in the bottom half of the class -- what to do?

A while back, I heard "Eight Tips for Better Voir Dire" (Nov. 17), "Going Solo and the New E-Discovery Rules" (Dec. 7) (two topics in one podcast). "How to Tell a Judge He Screwed Up" (Feb. 16) has advice from a federal district judge. (Hint: Don't say "You screwed up, you jerk.")

"What They Didn't Tell You in Law School" (Jan. 5) features Mark Herrmann reading a chapter from his book, The Curmudgeon's Guide to Practicing Law (earlier post). He says that the skills of preparing for and taking exams are related to practice skills -- but moot court is less realistic.

I still listen to music and podcasts that are just for fun (the Wait, Wait, Don't Tell Me podcasts are great), but this is an easy way to supplement my professional reading. (At the end of each episode, the narrator often tells you other sources -- e.g., an article on the ABA website.)

Other podcasts to try:

Thursday, April 12, 2007

Communicating Across the Gender Gap

I saw an ad for an interesting CLE from ALI-ABA: ALI-ABA Professional Skills Series: Communicating Across the Gender Gap. It's in New York City May 11 -- and also available via the web. Here's the description (even if you don't look into the CLE, the description offers some food for thought):

Communication always goes two ways. What we say may not always be what someone else hears. And whether we like it or not, how well we communicate is deeply affected by gender.

A growing number of studies show again and again that most women and men have different styles of talking and of listening. Your gender makes a huge difference in how others hear and perceive you and can lead to misunderstandings and missed opportunities. This can have consequences for your legal practice, your reputation for professionalism, and even your career.

Presenting a proposal to clients, talking to partners, interviewing a witness, questioning the defendant on the stand -- all of these can be affected profoundly by the gender of the participants. When we speak to others in a firm meeting, before a legislature, to a judge, or to a public gathering, how the audience hears us will most likely be based as much on whether we are men or women as on what we say.

Neither male nor female communication style is better. And each can be modified to make it more effective. But unless you understand these profound differences, your communication skills will suffer.

This multi-media, multi-disciplinary program will give you fascinating, useful, and practical tools for understanding how gender affects communication and dozens of tips to help you in your daily life as a lawyer. Attend this program and learn:
  • How to use your own natural style to your advantage, and how to minimize what might seem to be disadvantages
  • How the nature of the legal profession exaggerates gender differences
  • * How the rules of a meeting affect who talks and how the seating arrangement at a table makes a difference in who participates
  • How gender affects interactions in the courtroom and how to deal with the issue
  • How to defuse gender conflicts in the office
  • Why many lawyers turn off potential clients of the opposite sex
Both speakers -- Steven Stark and Sarah Wald -- are well-known as speakers and authors.

If you are put off by the price ($375), not that ALI-ABA offers tuition assistance based on need. "ALI-ABA is particularly interested in applications from minority lawyers, public interest lawyers, government lawyers, and recently admitted sole practitioners."

Wednesday, April 11, 2007

Forensic "Sciences" - Cautions and Recommendations

Two law professors survey the field of forensic sciences -- from matching shoeprints to DNA analysis -- and how they are treated by courts. They offer cautions, particularly about the forensic "sciences" that don't use basic science (e.g., shoeprint matching and even fingerprint analysis). Jane Campbell Moriarty & Michael J. Saks, Forensic Science: Grand Goals, Tragic Flaws, and Judicial Gatekeeping, Judges J., Fall 2005, at 16. Here's the abstract:

First, this article exhaustively but briefly reviews the variety of forensic sciences and the bases (sometimes little more than assumptions) on which they rest - drawing a major distinction between those that assert the ability to individualize crime scene evidence to its one and only source (and which, ironically, do so without applying any basic science) and those which do not assert individualization (and which generally are applications of basic sciences).

Second, the article discusses the problem recognized by the Supreme Court of analytical gaps between available data and the opinions of some experts, and the widespread manifestation of such gaps in the identification/individualization subfields of forensic science.

Third, the article assumes that most judges most of the time will admit most such evidence regardless of the commands of the Daubert trilogy and the rules of evidence, and offers practical suggestions about what judges might do to improve their management of such testimony and to protect factfinders from the most misleading claims and unsupportable opinions, while still admitting the testimony into evidence.

Summary Judgment and Gender

Prof. Elizabeth Schneider (Brooklyn Law School) has a very interesting piece about summary judgment and how it might particularly affect female plaintiffs. Elizabeth Schneider SSRN-The Dangers of Summary Judgment: Gender and Federal Civil Litigation, Brooklyn Law School, Legal Studies Paper No. 71 (March 5, 2007).

Summary judgment is an area where there is a tremendous amount of discretion, and discretion can be the locus of hidden discrimination. The question I ask is, where women plaintiffs are involved, or where gender is an issue in the case, how is summary judgment applied?

* * *

There are many subtle ways in which judicial decisionmaking on summary judgment can be problematic: in judicial evaluations of female plaintiff credibility (which the Task Force Reports and other studies have recognized as particular hurdles for women litigants and witnesses); in judicial assessment of the facts of the case or the strength of novel claims or rejection of novel arguments "as a matter of law"; in judicial determination of whether a "reasonable juror" could find for the plaintiff; and in judicial diminution and trivialization of the seriousness of harms suffered by women plaintiffs seeking redress in court.
Id. at 5-7.

And consider expert evidence (or don't consider it):
Another important development is the significant interplay between summary judgment and Daubert on judicial determination of expert evidence. Daubert plays a critical role in summary judgment cases because if the judge gets rid of plaintiff’s expert evidence it makes granting summary judgment easier. Daubert is now viewed as a "summary judgment substitute." * * * Daubert may be the preferred method of District Court resolution since there is greater play for District Court judges and smaller chance of reversal on appeal.
Id. at 17 (footnotes omitted).

Tuesday, April 10, 2007

Feds Must Revise Salmon Plan

The Ninth Circuit affirmed a district court case rejecting the National Marine Fisheries Service's plan to protect endangered salmon and steelhead in the Columbia and Snake Rivers. Washington: Fish Protection Lags, Court Agrees, NY Times, April 10, 2007.

The opinion is National Wildlife Federation v. National Marine Fisheries Service, --- F.3d ---, 9th Cir. link (9th Cir. April 9, 2007).

(The National Marine Fisheries Service is now named NOAA Fisheries.)

Photo: U.S. Fish & Wildlife Service, Salmon of the West: Why are salmon in trouble? Dams.

ScienceDaily: Culture Is Key To Interpreting Facial Emotions

Psych Study: Culture Is Key To Interpreting Facial Emotions, ScienceDaily, April 10, 2007.

Research has uncovered that culture is a determining factor when interpreting facial emotions. The study reveals that in cultures where emotional control is the standard, such as Japan, focus is placed on the eyes to interpret emotions. Whereas in cultures where emotion is openly expressed, such as the United States, the focus is on the mouth to interpret emotion.
The researchers used photos and computer emoticons that varied in both eyes and mouth (e.g., neutral mouth, sad eyes; happy mouth, neutral eyes). People from the different cultures assess the emotions of the faces (or diagrams of faces) differently.

The emoticon part is fun. U.S. and Japanese computer users have developed different ways to use punctuation to show emotion:
U.S. happy faces and sad faces:





Japanese happy face and sad face



But apart from the cuteness, the research might have something to teach us -- for instance, when we consider how a juror will assess a witness's testimony.

The published study is:
Masaki Yuki, William W. Maddux & Takahiko Masuda, Are the windows to the soul the same in the East and West? Cultural differences in using the eyes and mouth as cues to recognize emotions in Japan and the United States, 43 J. Experimental Soc. Psych. 303–311 (2007) .

Police clear 2 officers of lying about arrests

Police clear 2 officers of lying about arrests, Seattle Times, April 10, 2007.

An investigation into nearly 30 recent arrests made by two Seattle Police officers who had been accused of lying in written reports has turned up no evidence of wrongdoing, Chief Gil Kerlikowske said Monday.
The officers' one error was failing to report that they had briefly detained and handcuffed another suspect; Chief Kerlikowske says that they might be reprimanded or have some other administrative punishment for that.
The National Association for the Advancement of Colored People (NAACP) and the King County Defender Association's Racial Disparity Project have called for an outside investigation into allegations of misconduct by Neubert and Tietjen [the two officers].
See earlier post.

Thursday, April 5, 2007

Impaired Lawyers

David Giacalone has a long, interesting piece about the ramifications of aging Baby Boomers practicing law. Some fraction may be suffering from peridementia -- more than occasional absent-mindedness, enough to impair their ability to practice. How should you handle it if a colleague or opposing counsel is losing it? the Graying Bar: let’s not forget the ethics, f/k/a..., March 20, 2007.

Sources for Background Checks

In the wake of news of killings by intimate partners, the P-I rans a story about checking out romantic partners and others. The end of the article links to websites. Check background of potential partner, Seattle P-I, April 5, 2007.

Update (later the same day, but an update nonetheless): See The Danger of Selling Cheap Background Checks, Imperative Information, March 14, 2007 (lawsuit against screening firm that failed to discover that man hired as aide for Alzheimer's patient was a registered sex offender). (Thanks, shlep!)

Seattle Urban League Urges Cold Case Investitgation

Edwin Pratt, the director of the Urban League of Metropolitan Seattle, was shot to death in 1969. Many believed that his killing was the work of white racists, but the crime was never solved. Now the current president of the Urban League, James Kelly, is urging the FBI to reopen the case. News: Southern Strategy, Seattle Weekly, April 4, 2007.

(See FBI investigation suspicious civil rights era deaths, Jurist, Feb. 28, 2007.)

WA juvenile agency director quits after critical review-

Sekuo Shabaka, director of Washington's Juvenile Rehabilitation Administration (part of DSHS) has resigned. WA juvenile agency director quits after critical review-, Columbian, April 5, 2007.

Newspaper Access to Prosecutors' Email?

A deputy prosecutor in Kootenai County (Idaho) is accused of harassing women. The Spokesman-Review wants to see his email messages to the women accusing him, but the prosecutor's office is fighting it. Meanwhile, the Idaho Supreme Court is considering the paper's lawsuit to obtain records in a similar case involving the same prosecutor's office. In that case, the county has settled (at taxpayer expense) a case alleging that the prosecutor harassed a juvenile drug court employee. The trial court said that the newspaper could see the emails but not the settlement, and both sides appealed. Judge: Prosecutor's e-mails are public, Spokesman Review, April 4, 2007.

Tuesday, April 3, 2007

Great Panel at UW Wed. Afternoon

Students -- If you're interested in a career as a trial lawyer, be sure to stop by the panel that the Washington State Trial Lawyers Association is putting on tomorrow afternoon:

Being a Champion for the Underdog and Still Paying the Bills: Plaintiff Success Stories

  • Judge Richard Jones (the same Judge Jones who has just been nominated to the Western District of Washington -- see earlier post for links to biographical information: he's an impressive man!)
  • Yvonne Kinoshita Ward (solo practitioner in Auburn)
  • Soloman Kim
  • Russ Aoki
4:30-5:30pm Career Panel, Room 115
5:30-6:30pm Reception

An interesting panel PLUS food and a chance to chat informally. Hard to beat!

RSVP on Symplicity so the organizers (Career Services) will know you're coming.

Seattle Settles WTO Arrest Case

A federal jury found that Seattle violated the 4th amendment rights of WTO protesters(earlier post). Now the city has reached a settlement with the plaintiffs, agreeing to pay $1 million, to seal the records of the arrests, and to train police on why the mass arrests lacked probable cause. City Attorney Tom Carr believes that the city could have won an appeal, but the city's insurance company urged a settlement. The agreement has to be approved by Judge Marsha Pechman before it is final. City to pay $1 million to settle lawsuit over WTO arrests, Seattle Times, April 3, 2007.

DV Protection Orders Aren't Magic

Yesterday's fatal shooting of a staff person on the UW campus prompted a story about the limits of domestic violence protection orders: Protection order can't stop person hellbent on doing harm, Seattle Times, April 3, 2007. They are supposed to protect a victim from her (or sometimes his) abuser, but the fact is:

There's no piece of paper strong enough to stop a person with a gun, an obsession and nothing left to lose, domestic-violence experts say.
About five years ago, the legislature changed the offense of violating a DV order from a gross misdemeanor to a felony, increasing the penalties.