Monday, January 31, 2011

Originalism and the Jury

Ohio State Law Journal has a symposium on "Originalism and the Jury":

Suja A. Thomas, Foreword, 71 Ohio St. L.J. 883 (2010).

Douglas A. Berman, Making the Framers’ Case, and a Modern Case, For Jury Involvement in Habeas Adjudication, 71 Ohio St. L.J. 887 (2010).

Brian T. Fitzpatrick, Originalism and Summary Judgment, 71 Ohio St. L.J. 919 (2010).

Judge Nancy Gertner, Juries and Originalism: Giving “Intelligible Content” to the Right to a Jury Trial, 71 Ohio St. L.J. 935 (2010).

Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010).

William E. Nelson, The Lawfinding Power of Colonial American Juries, 71 Ohio St. L.J. 1003 (2010).

James Oldham, On the Question of a Complexity Exception to the Seventh Amendment Guarantee of Trial by Jury, 71 Ohio St. L.J. 1031 (2010).

Gene Schaerr and Jed Brinton, Business and Jury Trials: The Framers’ Vision Versus Modern Reality, 71 Ohio St. L.J. 1055 (2010).

Suja A. Thomas, A Limitation on Congress: “In Suits at common law”, 71 Ohio St. L.J. 1071 (2010).

Juicy stuff for constitutional law, legal history, and trial practice buffs!

Monday, January 24, 2011

I will never complain about jury instructions again! «

Justin Walsh, writing on The Amateur Law Professor blog, shares a choice jury instruction from 1869 here: I will never complain about jury instructions again! «

Friday, January 21, 2011

An iPad in Your Trial Briefcase?

screen shot
Two new iPad apps are designed to help lawyers keep track of jurors during selection and trial. A reviewer says they seem quite promising -- much better than moving sticky notes around a legal pad! Each app is just $9.99, so they're pretty cheap to try out (if you already have an iPad, of course). Ted Brooks, Selecting and Monitoring a Jury on an iPad, Legal Technology News, Jan. 21, 2011.

The reviewer was much more cautious about a couple of iPad apps for managing and displaying trial exhibits. Ted Brooks, Two iPad Apps Make Their Cases for Trial, Legal Technology News, Jan. 11, 2011. One of those apps is also $9.99; the other is $89.99.

Graphic: screen shot of Jury Tracker app from Legal Technology News review.

Monday, January 17, 2011

Loans for Lawsuits: High Price, Little Regulation

The New York Times and the Center for Public Integrity (a nonprofit for investigative journalism in DC) took a look at the industry that lends money to plaintiffs until their settlements or awards come in. The interest rates are very high -- a $10,000 loan can become a $30,000 debt very quickly -- but the industry says they are justified because of the risk that the plaintiffs lose their cases. Others say the practice is abusive. See Benjamin Appelbaum, Lawsuit Loans Add New Risk for the Injured, Jan. 16, 2011.

Sunday, January 16, 2011

Articles on E-Discovery Sanctions, Federal District Courts, and More

A recent study finds increasing sanctions of lawyers and their clients for e-discovery violations. Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010). You can find a brief discussion of this 76-page article here: Study: Lawyer Sanctions Over Electronic Discovery on the Rise - Law Blog - WSJ, Jan. 13, 2011.

That article caught the eye of the Wall Street Journal's blogger, but it's just one in a special symposium issue: the 2010 Civil Litigation Review Conference. Here are the rest of the articles in that issue:

John G. Koeltl, Introduction, Progress in the Spirit of Rule 1 ... 537

John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform ... 547

Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience ... 597

Steven S. Gensler, Judicial Case Management: Caught in the Crossfire ... 669

Patrick E. Higginbotham,The Present Plight of the United States District Courts ... 745

Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation ... 765

For even more scholarship on civil litigation, see the shorter e-only articles on Duke Law Journal's Workshop site.

Patrick E. Higginbotham has been a federal judge for 35 years (N.D. Tex. 1975-82, 5th Cir. 1982-present), so I was curious about what he thinks the plight of federal district courts is. He observes that conducting trials has become a very small part of the work of federal trial court judges -- the average district judge has almost 300 days a year with no trials. While some see this as a good thing, Judge Higginbotham says it is "a manifestation of the illness" he discusses.

He argues "that federal trial courts are now more like administrative agencies than trial courts in their present efforts to discharge their duty to decide cases or controversies, and that we are witnessing the death of an institution whose structure is as old as the Republic."

The changes Judge Higginbotham examines are the rise of arbitration and other ADR, the decline of attorneys with trial experience, the loss of the 12-person jury, and "the drift of the federal courts to the civil law model and their capture by the administrative model." He urges a return to the trial model.

Thanks: Aaron McElhose

Saturday, January 15, 2011

Judy Clarke: Loughner's Lawyer Defended the Unabomber - TIME

Judy Clarke has been appointed to represent a number of unpopular defendants: Ted Kaczynski (the Unabomber), Susan Smith, Zacarias Moussaoui, Timothy McVeigh, Eric Robert Rudolph. And now she has been appointed to represent Jared Loughner. See Judy Clarke: Loughner's Lawyer Defended the Unabomber - TIMEJan. 12, 2011; Loughner’s Lawyer Is Called a Master Strategist, N.Y. Times, Jan. 10, 2011.

For a very interesting account of the representation of Kaczynski, see Michael Mello, United States v. Kaczynski: Representing the Unabomber, in Legal Ethics Stories (Deborah L. Rhode & David Luban eds., 2006), KF306.A4 L43 2006 at Reference Area.

Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog

In Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog, Nov. 4, 2010, Susuk Lim discusses a personal injury case in which "a Pennsylvania court not only concluded that information posted on one’s profile lacked protection, but that login credentials to the profiles themselves are not confidential." I've seen lots of articles about litigators using Facebook and other sites, but I hadn't seen discovery of the other party's passwords in order to read them. Interesting.

Wednesday, January 12, 2011

When Jurors Discriminate

When Jurors Discriminate is the jury tip of the month from jury consultant Harry Plotkin.

The best and only way to shift your jurors' focus away from your client and onto your case is to make your case, from opening statement to closing, about the jurors themselves, not your individual client. Only by persuading your jurors that this could have happened to anyone -- even the jurors themselves -- will you convince them to ignore how they feel about your client. Your jurors may not want to give your client justice, but no juror wants to deny themselves justice, even by proxy.

Monday, January 10, 2011

Law and the Brain

An intriguing conference, Law & the Brain: How Recent Advances in Neuroscience Impact the Law, will look at a number of topics in New York in March. Keynote presentations relevant to trial practice include:

  • Implications of Neuroscience for the Courtroom - Hon. Jed Rakoff, JD, United States District Judge for the Southern District of New York
  • False Memories and Witness Reliability - Elizabeth Loftus, PhD, Distinguished Professor; Professor, Psychology & Social Behavior; Professor Criminology, Law & Society; Professor, Cognitive Sciences; Professor, School of Law, Director, Center for Psychology & Law; Fellow, Center for the Neurobiology of Learning and Memory and Professor of Law, University of California, Irvine
  • Emotions, Memory and Bias: Implications for the Courts - Elizabeth Phelps, PhD, Professor of Psychology, New York University

Tuesday, January 4, 2011

Perfect storm hits legal aid

The National Law Journal reports on the funding crisis in legal aid around the country. Karen Sloan, Perfect storm hits legal aid, Nat'l L.J., Jan. 3, 2011. State and local government funding is down (often by a lot) and IOLTA funds are down. Federal funding is up a little, but not enough to make up for the losses.