Tuesday, February 24, 2009

Jailing Kids for Cash

Truthdig - Reports - Jailing Kids for Cash, Feb. 17, 2009:

As many as 5,000 children in Pennsylvania have been found guilty, and up to 2,000 of them jailed, by two corrupt judges who received kickbacks from the builders and owners of private prison facilities that benefited. The two judges pleaded guilty in a stunning case of greed and corruption that is still unfolding. Judges Mark A. Ciavarella Jr. and Michael T. Conahan received $2.6 million in kickbacks while imprisoning children who often had no access to a lawyer. The case offers an extraordinary glimpse into the shameful private prison industry that is flourishing in the United States.
Thanks: Michele Storms, Jill Mullins.

Federal District Judge "Retires" Under Indictment

Federal judge pleads to obstruction of justice, steps down, Nat'l L.J. web only, Feb. 24, 2009.

Federal Judge Samuel B. Kent, indicted in January on six counts of alleged sexual abuse of two court staff members and obstruction of the investigation, pleaded guilty to obstruction and "retired" his lifetime post Monday.

He is the first federal judge ever indicted for alleged sexual crimes.
Judge Kent achieved some fame for his use of humor to chastise attorneys who practiced before him. For instance, in one case, he said that the lawyers had written their motions in crayon on grease-stained place mats. That case was sent around the Internet and appeared in reading lists in the U.S. law schools -- and even in an Australian judicial training program. For a thoughtful essay on this, see Steven Lubet, Bullying from the Bench, 5 Green Bag 2d 11 (2001). For other examples of judges criticizing lawyers (generally with less hyperbole and fewer cheap shots), see Mary Whisner, When Judges Scold Lawyers, 96 Law Libr. J. 557 (2004).

Once Kent wrote
Manifestly, any person with even a correspondence-course level understanding of federal practice and procedure would recognize that Defendant’s Motion is patently insipid, ludicrous, and utterly and unequivocally without any merit whatsoever. Worse it is just plain blatantly wrong in light of the unambiguous language of a decades old federal statute and veritable mountains of case law addressing venue propriety.
Kent Doesn’t Mince Words, Texas Lawyer, July 16, 2001, at 5, 5 (quoting order in Labor Force v. Jacintoport Corp., No. G-01-058 (S.D. Tex. June 7, 2001)). The order was published in the advance sheet of 144 F. Supp.2d 740 but withdrawn from the bound volume at the request of the court. It was also "Removed from the LEXIS Service at the Request of the Court July 18, 2001." In that case, someone (his colleagues?) persuaded the judge to withdraw the case from publication (but it is still available --it's hard to kill these things once they're out).

Given these examples of Judge Kent's lack of decorum and poor sense of boundaries -- or, as Lubet termed it, his bullying -- it's not too surprising that he also believed that the rules of sexual propriety and workplace respect also did not apply to him. It says something that the conduct was serious enough to end his lifetime appointment.

Friday, February 20, 2009

National Academies of Sciences Slams Crime Labs

National Academy of Sciences Finds 'Serious Deficiencies' in Nation's Crime Labs, Nat'l Acad. Crim. Defense Lawyers press release, Feb. 18, 2009:

A much anticipated report by the National Research Council (NRC) of the National Academy of Sciences (NAS) on the state of forensic science in the U.S. and its recommendations to fix a broadly flawed system was released today. Finding an inconsistent system rife with “serious deficiencies,” lacking practitioner and laboratory independence, standards, oversight, and certification, the NRC called today for major reforms, including the establishment of a wholly independent federal agency, the National Institute of Forensic Science (NIFS), to address the manifold problems with the current science and system.

This page from the National Academies of Sciences has the NAS press briefing and the full report (Strengthening Forensic Science in the United States). You can view the report free but need to pay to download it.

Wednesday, February 18, 2009

Costco Decision Could Significantly Change Scope of Attorney-Client Privilege

Michael A. Sands and Dan Ko ObuhanychJD Supra: Legal Articles - Costco Decision Could Significantly Change Scope of Attorney-Client Privilege, Jan. 13, 2009.

Costco (in California) asked counsel review its classification of its managers (bakery manager, meat manager, et al.) under wage and hour laws. To do so, the lawyer interviewed a couple of managers, gathered facts, and wrote a 22-page opinion letter. A year later, Costco reclassified the managers to be non-exempt so they would be eligible for overtime. Over a year after that, some managers filed a class action alleging that Costco's previous classification had been wrong. And the plaintiffs' attorneys sought the 22-page opinion letter in discovery.

The trial judge had a discovery referee read the letter, redact what was privileged, and let the plaintiffs the "factual information."

The California Court of Appeals denied writ relief because the company couldn't show "irreparable harm" because the parts of the opinion letter disclosed

were “inconsequential and do not infringe on the attorney-client relationship.” The appellate
court noted that the unredacted portions of the letters were “factual statements about the employees’ responsibilities” and did not reveal legal knowledge, advice or impressions, and stated that the information “is hardly startling and can easily be obtained from interviews, depositions, or from a production request.”
And now the case is pending before the California Supreme Court.

The authors of this newsletter article predict that this decision could have a big effect. Will clients be less forthcoming to their attorneys? Will attorneys start delivering more advice orally?

Think about how you weave facts into a memo or opinion letter. Can the way you order and state facts really be separated from your legal analysis?

Tuesday, February 17, 2009

UW mock trial team succeeds in Oregon, qualifies for nationals - The Daily of the University of Washington

The undergraduate mock trial club, founded just last year, has entered the competition circuit with a splash. UW mock trial team succeeds in Oregon, qualifies for nationals - The Daily of the University of Washington, Feb. 17, 2009. Congratulations!

Thursday, February 12, 2009

Vaccine Ruling Could Spur Appeals, Suits in State Court

More on the vaccine/autism ruling: The BLT: The Blog of Legal Times : Vaccine Ruling Could Spur Appeals, Suits in State Court, Feb. 12, 2009.

Autistic Children Ineligible For Vaccine Funds : NPR

Autistic Children Ineligible For Vaccine Funds : NPR, Feb. 12, 2009:

A federal court has issued a ruling that families claiming their child's autism is caused by vaccines will not be eligible for a previously established program to compensate people injured by vaccines.

The special court set up by the U.S. Court of Federal Claims ruled that neither a preservative used in vaccines nor the vaccines themselves could be linked to autism.
See Autism Decisions and Background Information on the court's website. Just now, I wasn't able to connect to the background information or to today's rulings. I guess that news of this is spreading through the community of claimants and the servers are overwhelmed by thousands of people trying to connect at once.

Law.com - Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court

Law.com - Law Profs, Former Judges, Attorneys Urge Major Reforms for Supreme Court, Nat'l L.J., Feb. 12, 2009:

A group of 33 law professors, former state supreme court justices and practitioners are urging the attorney general and the heads of the Senate and House judiciary committees to consider four changes in the operation of the U.S. Supreme Court, including regular appointment of justices and the involvement of appellate judges in the selection of cases to be decided on the merits.

Perkins Coie Sues Ex-IP Associate Who Left Firm for Rival

Law.com - Perkins Coie Sues Ex-IP Associate Who Left Firm for Rival, Feb. 12, 2009. This associate was a hot prospect, since he had a Ph.D. in electrical engineering, so Perkins (in California) gave him a choice package, including lending him money to finish law school, paying for his bar review, and helping him repay his loans. Perkins says that under the deal he had to repay all this if he left within three years. And he did.

The suit is in Alameda County Superior Court.

Tuesday, February 10, 2009

Immigration Crackdown Overwhelms Judges, NPR All Things Considered, Feb. 9, 2009:

In fiscal year 2007, the nation's 214 immigration judges oversaw nearly 350,000 cases. Dana Leigh Marks, who heads the National Association of Immigration Judges, says she spends 36 hours a week on the bench trying to keep up, and Marks doesn't even have basic resources that other judges take for granted.

"I'm lucky," Marks says. "Here in San Francisco, I have one-quarter of a law clerk. Throughout the country, the ratio of law clerks to immigration judges makes it so that most judges have one-sixth of a law clerk."

Marks says she can definitely feel like Lucy Ricardo on the chocolate-factory line. But with many defendants seeking refuge from persecution, the frenetic work pace is hardly a comedy.

"For some people, these are the equivalent of death penalty cases, and we are conducting these cases in a traffic court setting."

Wednesday, February 4, 2009

Reclaim Your Practice Reclaim Your Life

UW Affiliate Professor Andy Benjamin has an article in Trial about life balance: G. Andrew H. Benjamin, Reclaim Your Practice Reclaim Your Life, Trial, Dec. 2008, at 30.

He reviews studies on lawyer distress (depression, substance abuse, etc.) and recommends a "Rule of Two": Select and maintain caseloads whose cases satisfy at least two of these three factors:

  • clients with personalities that fit well with your own
  • legal issues that you value
  • either a sufficient advance fee/retainer or the conscious decision to handle cases pro bono.

Twin federal RICO lawsuits filed against the nation's two biggest mortgage lenders. : RICO Law Blog

Twin federal RICO lawsuits filed against the nation's two biggest mortgage lenders. : RICO Law Blog, Feb. 3, 2009:

The Arizona Republic reported today that twin federal lawsuits filed in Phoenix and Seattle accuse the nation's two biggest mortgage lenders of using their industry muscle to twist the independent home-appraisal process into a corrupt moneymaking scheme.

Seattle-based law firm Hagens Berman Sobol Shapiro LLP filed the lawsuits and is seeking class-action status in both cases.
To read more (from the plaintiffs' perspective), go to Hagen Berman's press room.

The cases are Clark v. Countrywide Home Loans Inc, No. 2:2009cv00036 (W.D. Wash., Judge Pechman) and Gomez v. Wells Fargo Bank NA, No. 2:2009cv00181 (D. Ariz., Judge Snow).

Tuesday, February 3, 2009

Washington Supreme Court Briefs Online

Washington Supreme Court briefs (June 2006-date) are now available on the Washington Courts website.

You can browse the briefs by case number, by case name, or by hearing date. Or you can search. I tried searching for "confrontation" and pulled up briefs discussing the confrontation clause.

The Courts site also has Division II briefs filed since June 2006.

A welcome development!

Update (Feb. 25): Welcome, that is, to researchers who have been frustrated working with microfiche briefs. Some lawyers, though, are not sure it's such a boon for their work to be available to anyone who wants to cut and paste.

Judge holds fate of gang member-turned scholar

The L.A. Times profiles Juan Obed Silva, a former gang member who turned his life around after a prosecutor and a judge took a chance on him:

The Orange County district attorney's office charged him with attempted murder. With several enhancements for being a gang member and using a firearm, he faced a sentence of 50 years or longer.

* * *

"Knowing that I was going to have to go to prison in a wheelchair -- it was agonizing," he said, remembering the day of his sentencing. "It's almost like you exist but in another dimension, where feelings can't touch you."

Then he was rescued, by the most unlikely people. The prosecutor withdrew some of the charges against him and the judge announced a dramatically reduced sentence: just five years of probation.

It was a decision [Silva's] attorney, [Victor] Cueto, calls "miraculous" and a "once in a lifetime" event. The judge had been moved, in part, by a probation report that described Obed as a young man of artistic temperament and said Obed had reconciled with a former gang rival and given him shelter because he was homeless.
Judge holds fate of gang member-turned scholar - Los Angeles Times, Feb. 3, 2009. Silva stayed clean for 5 years, then began college. Now he is finishing a master's in English.

He is also facing deportation to Mexico, which he left when he was a baby, for the shooting in 1998, when he was a teenager.
To stay in the U.S., he'll need one more rare act of compassion, this time from the immigration judge.