Litigation Dep't of the Year: Paul Weiss

American Lawyer awards Paul, Weiss, Rifkind, Wharton & Garrison honors for "litigation department of the year," saluting its work defending Citigroup in several big-money class actions. law.com - 2006 Litigation Department of the Year The profile discusses the department's changes in the last several years, adjusting to the loss of its long-time star and rainmaker, Arthur Liman. And it mentions that the firm handles pro bono litigation as well, including death penalty cases and a challenge to New York's marriage law on behalf of same-sex couples.

Categories: practice-of-law, class-actions, big-firms

The Docket - legal affairs program

The Washington State Bar Association is sponsoring a new legal affairs program on TVW (Washington's "C-SPAN" cable channel). The Docket premieres on TV at 8 pm Sunday, January 1, but you can view it already in streaming video. Hosted by Dean W.H. Knight, Jr., of the University of Washington School of Law, the half-hour program includes:

• a discussion of state Supreme Court cases on de facto parental rights and sexual relationships between teachers and students;
• an interview with Chief Justice Gerry Alexander;
• comments on the media's coverage of courts by former ABC news producer Peter Shaplen; and
• a guided Capitol tour explaining how a bill becomes a law.

The TVW website includes links to more material -- for instance, the video of the oral argument of one of the cases discussed and the audio of the entire speech by Peter Shaplen that is excerpted in the program.

Categories: The-Docket, Knight, UW, WSBA, Alexander, TVW

Confusion over marital privilege leads to ineffective assistance of counsel

[CASE] The Ninth Circuit upholds habeas relief for a defendant whose attorney elicited testimony that waived his marital privilege. Edwards v. Lamarque, --- F.3d ---, 2005 WL 3358845 (9th Cir. Dec. 12, 2005), Find Result - 2005 WL 3358845.

[The lawyer's] responses to the prosecutor's objections and the trial judge's comments reveal that he fundamentally misunderstood the marital privilege, and thus lacked the legal understanding necessary for a competent tactical decision. [The lawyer] plainly believed that he could prevent [defendant's wife] from testifying as to certain “confidential” conversations between her and [the defendant] * * *, but that he could pick and choose other parts of the conversations they had and elicit testimony as to [the defendant's] versions of those exchanges to bolster his defense.

* * *
Fundamentally, [the lawyer] had no conception of the most basic premise of the spousal privilege and could therefore not make competent tactical decisions regarding it. He did not recognize that all private communications between spouses are “presumed to have been made in confidence.” * * Correspondingly, [he] showed no understanding that courts narrowly construe the privilege because it “prevent[s] the admission of relevant and otherwise admissible evidence” and impedes the search for truth. * * * Given [the lawyer's] evident misconceptions about the nature and scope of the marital privilege, [he] was incapable of making competent tactical decisions of the sort the state court (and the dissent) imagines.

Categories: evidence, privilege, waiver, ineffective-assistance, cases

King County's Jury Debriefing Program

[RESEARCH] The current (Dec/Jan. 2006) issue of Washington Law & Politics includes an article about the King County Superior Court's jury debriefing program that provides psychological debriefing after particularly stressful trials. The article ("Jury Box Blues," p. 73) is not on the magazine's website, so I looked for aomething I could link to. (The magazine is available in print in the Reference Area of the law library, but still it's nice to have a link.)

I hit paydirt with King County Superior Court: Evaluation of the Jury Debriefing Program, a report prepared by the National Center for State Courts in 2000, two years after the program was instituted. It outlines how the program is implemented -- bringing in the psychologist is at the discretion of the judge -- and reports on surveys of participants, who found the service very helpful. Skimming the appendix of survey responses and focus group comments provides an interesting glimpse of jurors' experience during high-stress trials.

King County is a leader in this area. At the time of the report in 2000, the National Center for State Courts was aware of only two other similar programs (one in Georgia and one in Kentucky). (Law & Politics says that King County is apparently the only court to institutionalize debriefing.)

See this earlier post for a summary of a law review article about juror stress that, among other things, recommends debriefing programs.

Categories: juries, debriefing, empirical-studies, NCSC, King-County

Book: Trial and Error

[BOOK] Trial and Error: The Education of a Courtroom Lawyer is John C. Tucker's memoir of a career in the Chicago courts (and even the U.S. Supreme Court). The publisher says "Relating both the highs and lows, while also recounting tales from the trial of a giant Mafia gambling ring to a legal showdown with heavyweight champion Muhammad Ali, Tucker gives aspiring young attorneys, law students, recent graduates, and all fans of courtroom drama -- and comedy -- the chance to see it all through the eyes of the man in the middle of the ring."

Check it out: KF373.T833 A3 2003 at Classified Stacks.

Categories: practice-of-law, books, famous-trials,

Closing Arguments: The Art and the Law

[BOOK] Closing Arguments: The Art and the Law, by Jacob A. Stein, gives lawyers guidance on the practical and legal aspects of closing argument. According to the publisher's description:

This work includes a detailed discussion of the strategies and techniques of a convincing closing statement, examining such issues as timing, references, handling objections, instructions, and rebuttals. Covers the use of visual aids and corroborating evidence, and dealing with difficult judges.

Take a look -- it's at KF8915 .S7 2005 in the Classified Stacks.

Categories: closing-arguments, tips, books,

The Persuasive Edge

[BOOK] We've just received The Persuasive Edge. According to the publisher:

THE PERSUASIVE EDGE, the revised edition of a classic, THE PERSUASION EDGE, is a must for every trial lawyer, teacher and student of law or communication, and anyone else whose practice or profession depends on human persuasion.

This straight-forward discussion combines the best academic conclusions from the psychology of human persuasion and decision-making with the practical knowledge acquired from litigation throughout the United States, to offer you a more purposeful and practical approach to improving your influence and advocacy. The authors? extensive experience as trial consultants has given them the opportunity to test modern persuasion techniques and research by working inside jury trials and conducting interviews with thousands of real and mock jurors in a wide variety of civil and criminal cases and training opportunities. This wealth of experience and unique perspective will assist you in creating a persuasive strategy for all aspects of legal practice but especially within the jury trial. This book is not an abstract discussion of communication and persuasion theory, but a reference work designed to offer you practical and concrete techniques for improving your persuasive communication skills.

The authors begin by identifying communication choices that will help you create a persuasive strategy for any situation inside and outside of the courtroom. Next, they demonstrate how the key components of personal credibility allow you to build an honest relationship with the jury, and offer specific techniques for capturing juror attention and securing juror commitment from the very start of every trial. They devote three chapters to the approach, mechanics and strategies of effective jury selection, including good voir dire question design, sound strike strategies, and techniques for improving your efficacy when voir dire is limited. They also identify the essential elements of powerful and persuasive opening statements and offer extensive tips and techniques for all witness examinations, and excellent methods for presenting compelling closing arguments. This new edition offers updated and practical suggestions for the effective use of advanced technology to visually enhance your persuasive strategy for every jury trial, and provides rare and insightful advice about improving your persuasive effectiveness and influence with judges.

Regardless of your specialty or years of experience, your advocacy will be enhanced by the deliberate communication choices identified and illustrated in this book. For everyone working, teaching or studying in the legal arena, this advanced guide to purposeful persuasion will change the way you communicate for the better.

It's in the Reference Area, at KF8915 .C698 2005.

Attorney sentenced for hitting courthouse marshal in Everett

[NEWS] An attorney has been sentenced to two months in jail and an anger management course after striking and cursing at a marshal. Here's the story from the Seattle Times Local Digest on Tuesday:

Everett Attorney gets 2 months in jail

A Seattle attorney found guilty of cursing at and striking a Snohomish County courthouse marshal was sentenced Monday to two months in jail.

In September 2004, Christopher Bartow was confronted by Marshal George Willoth because Bartow had repeatedly interrupted a court commissioner during a hearing, according to court papers. The attorney cursed at Willoth and struck him in the head, charging documents said. Willoth used pepper spray to subdue Bartow.

In addition to jail time, Bartow, 40, was ordered to complete an anger-management course.

I don't know any more about the incident, but this is a good reminder of the need to learn to manage the stress of litigation. It's natural to get excited in the heat of argument -- but one doesn't do oneself or one's clients any good if the adrenaline takes over.

Categories: practice-of-law, Snohomish-county, sanctions, news,

DUI tests frequently tossed out; 2004 law backfired (Seattle Times)

[NEWS] This morning's Seattle Times has a front-page story about challenges to the new DUI law: DUI tests frequently tossed out; 2004 law backfired. The Washington State Supreme Court heard oral argument in City of Fircrest v. Jensen October 27. For more, see my post from Aug. 5 with a link to the PI's story.

Categories: DUI, legislation, cases, news

Conviction reversed when impeachment evidence used to show element of crime

[CASE] Division 3 reverses a conviction because the only evidence for one element of the crime was hearsay evidence introduced for impeachment. State v. Clinkenbeard, --- P.3d ---, 2005 WL 3164814 (Wash. App. Nov. 29, 2005), Find,
Washington Courts website

The defendant was a school bus driver. He became friendly with a student when she was in fifth grade and maintained contact for many years, even after she no longer rode his bus. After she turned 18, he left his wife and moved close to the student. The state alleged that he had sex with her and prosecuted him under a statute that makes it unlawful for a school employee to have sex with any student while still a student, if the employee is at least five years older than the student. The defendant was 44 years older than the student.

At trial, the student testified that they had not had sex. As impeachment evidence, the court allowed hearsay statements -- one from a friend and one from a detective.

On appeal, the defendant unsuccessfully challenged the consitutionality of the statute (RCW 9A.44.093(1)(b)).

The court found it impermissible to allow the hearsay testimony to be used to show that the defendant had, in fact, had sex with the student. And, since that was the only testimony as to that element of the crime, the court reversed the conviction for insufficient evidence.

(Note: this is the second time I've posted about this case and the last one. That's because my earlier posts were dropped from the system. Computers: very handy, but sometimes things go wrong.)

Categories: evidence, hearsay, impeachment, cases,

Hearsay OK to show participation in false alibi

[CASE] Division 1 addresses a Crawford argument, holding that admission of the hearsay statements in this case did not violate the defendant's confrontation rights because they were not admitted to show the truth of the matter asserted. In re Personal Restraint of Theders, --- P.3d ---, 2005 WL 3101045 (Wash. App. Nov. 21, 2005), Find Result - 2005 WL 3101045,
Washington Courts site

The facts, simplified: The defendant's buddy called his wife on his cell phone, saying that he was with the defendant and they were going to Petsmart to look for a dog bed. The wife heard defendant in the background. Later the buddy called again, saying that they were checking other stores. Then a woman was attacked in her home by a man in a ski mask. She recognized the man's voice as that of the buddy. Both men were questioned by the police, and each said that they had been together, shopping for a dog bed, away from the scene of the assault. In a later written statement the defendant said that he had driven his buddy to the house.

At trial, the court admitted testimony about the cell phone calls and the buddy's statement about shopping with the defendant. Does that present a hearsay problem? Division 1 says no. The statements weren't introduced to show that the defendant and his buddy actually were shopping for a dog bed. They were introduced to show that the defendant participated in the buddy's construction of a false alibi.

Categories: evidence, hearsay, alibi, Crawford-v-Wash, cases,

Judicial Selection Coalition

A number of legal and civic groups are participating in a Judicial Selection Coalition. According to the King County Bar Association, one of the coalition members

Some of the expressed concerns that gave rise to this coalition effort are: the increasingly partisan nature of judicial campaigns; the escalating costs of funding a judicial election campaign; the lack of judicial campaign financing limits; the growing amounts of special interest money being injected into judicial campaigns; the lack of sufficient standards for eligibility for judicial office; the relative shortage of useful information available to voters regarding judicial candidates and the difficulties of ferreting out such information; and the skewing of voting results by irrelevant factors such as ballot placement and commonness of names of judicial candidates.

The members of the coalition are:

• American Judicature Society (Washington Chapter)


• Asian Bar Association of Washington


• Defender Association
• King County Bar Association
• League of Women Voters of Washington
• Loren Miller Bar Association
• Municipal League of King County


• Washington Defense Trial Lawyers


• Washington State Bar Association


• Washington State Trial Lawyers Association

The KCBA website includes links to much more information.

Curious about judicial selection in other states? See Judicial Selection in the States, from the American Judicature Society. (It includes Washington, of course.)

Categories: judges, judicial-selection, American-Judicature-Society, WSBA, WSTLA, KCBA

WSBA meeting this week

[EVENT] The Washington State Bar Association Board of Governors meets in Bremerton Friday and Saturday. WSBA press release. Items related to trial advocacy include:

• Draft ethics opinion about handling of advance fees
• Possible amicus brief in case about police posing as attorneys to gather evidence (See earlier post.)
• Possible Criminal Rule changes concerning the recording of witness statements
• Update from Committee on Public Defense

Categories: WSBA, event

Public Access to Decision Revealing Evidence Tampering by Honda and Expert Robert Gratzinger - November 3, 2005

[CASE] After a California Superior Court judge sanctioned an expert for deliberately destroying evidence in a car safety case against Honda he sealed the sanctions opinion to facilitate settlement. Trial Lawyers for Public Justice challenged that ruling, arguing that "the public has the right to know about the unethical conduct exposed in this decision." And three years after the original ruling, the judge agreed that the order was improperly sealed and unsealed it.
TLPJ - Press - Public Access to Decision Revealing Evidence Tampering by Honda and Expert Robert Gratzinger - November 3, 2005. The original order (Oct. 2, 2002) and the recent order unsealing it (Oct. 26, 2005) are linked from TLPJ's press release.

The original order related the facts in some detail. Honda's expert, Robert Gratzinger, was examining the car the plaintiff had been riding in to gather evidence about whether she'd been wearing a seatbelt. During his examination, he took out a rag and rubbed out certain "witness" marks on the seatbelt buckle's latch. When plaintiff's attorney told him to stop, he persisted. He took the rag with him and produced a different rag at a hearing on spoliation. Clearly, the judge was appalled.

In the 32-page order, the judge then carefully went over possible sanctions -- monetary fine, limiting the defense that Honda could offer, declaring a mistrial -- and rejected them, concluding that the appropriate sanction was the biggest: holding Honda liable for the injuries and only sending to the jury the question of damages. Honda was also ordered to pay attorneys fees and costs to the plaintiff and the co-defendants.

Categories: experts, evidence, spoliation, sanctions, sealed-records, settlements, cases,

The Seattle Times: Judge sends 2 lawyers to prison

[NEWS] On Friday Federal District Judge Ricardo Martinez sentenced the two lawyers who pleaded guilty in the drug money case. James L. White was sentenced to 18 months in prison. A. Mark Vanderveen was sentenced to 3 months in prison and 3 months of home detention. The government had recommended a lighter sentence for Vanderveen, but the judge said that he had to hold him to a "higher standard." The Seattle Times: Judge sends 2 lawyers to prison
The Seattle Times story concludes:

Meantime, an investigation arising out of the same drug case into possible misconduct by other criminal-defense attorneys is continuing. Other attorneys have been advised they could be targets.

Categories: sentencing, practice-of-law, Martinez, Vanderveen, White

Local lawyers plead guilty in drug money case

[NEWS] The good news on the front page of the Seattle Times this morning was the Gates gift for public service scholarships. A sadder story about lawyers and money was above the fold. Two local defense attorneys (one of whom was also a part-time municipal court judge) pleaded guilty to charges related to their receipt of drug money. A. Mark Vanderveen's offense was failure to report income to the IRS; James L. White's was money laundering (he accepted $100,000 in cash from a client and passed along $20,000 to Vanderveen).The Seattle Times: Local News: Two well-regarded lawyers are done in by drug money

In a related story, the Times reports that such prosecutions are rare.

The Times has posted sentencing memoranda on its website (linked from the first story above) -- the government's memoranda for both men and Vanderveen's. The government is recommending 18 months imprisonment for White and 30 days imprisonment for Vanderveen.

By the way, the federal prosecutor, Ronald Friedman, was a Trial Ad instructor last year.

Categories: practice-of-law, sentencing, Vanderveen, White, Friedman, UW

Gates public service scholarships at UW

[NEWS] Yesterday the Bill & Melinda Gates Foundation announced an extraordinary gift to the University of Washington School of Law: $33.3 million for full-ride scholarships over the next 80 years.

The gift honors Bill Gates's father, William H. Gates (UW Law School class of 1950), who turned 80 yesterday. The scholarship program begins with law students who enter next year. Each year five students will be awarded a scholarship covering tuition and living expenses for the three years of law school, with a commitment that the student spend seven years in public service after graduation.

Dean Knight announced the gift to the law school community in a brief meeting in the moot court room. I'm sure I was not the only one among the gathered students, staff, and faculty who was stunned and impressed by the gift.

Some years ago, the Bill & Melinda Gates Foundation made the lead gift in our building campaign, and the building is named William H. Gates Hall because of that. That generous gift was $12 million. This one is nearly three times as much -- and it's very exciting that it will go to students. The whole law school will benefit, because of speakers and other programs that will accompany the scholarship program. And in turn, the program will benefit the public because of the committed advocates who will go into public service.

William H. Gates has a long-standing commitment to public service. Among other things, in 1990 he led a Washington State Bar Association committee that declared access to justice to be the most pressing issue facing the state bar. Golden Gates, Equal Justice Magazine, Summer 2003.

Press coverage of yesterday's gift:

• UW law school gets $33.3 million gift from Gates Foundation -- Seattlel PI


• Gates birthday gift is the kind that will keep on giving -- Seattle Times


• Press releases: UW; Gates Foundation. (You'll note a strong similarity -- with a gift of this magnitude, of course the parties coordinated!)

Categories: Gates, Public-Service, UW, Knight, news

How Many Trials?

[RESEARCH] I wondered: how many trials are taking place in Washington Courts? Of those, how many take place here in King County? Are there more or fewer than a few years ago?

So I spent a little time looking at the caseload reports from the Washington Courts. In these, you can find all sorts of data about filings, dispositions, nature of cases, and more. Here are just a few statistics:

Filings and trials in the superior courts in 2004

• Filings

Criminal: 48,161 (up 13% from 2000)
--- King County: 10,209
Civil: 128,009 (up 21% from 2000)
--- King County: 39,309
Domestic Relations: 37,703 (down 1% from 2000)
--- King County: 7,507

• Trial Proceedings

Criminal: 2,207 (down 11% from 2000)
--- King County: 537
Civil 1,462 (down 15% from 2000)
--- King County: 342
Domestic Relations: 2,563 (about the same as 2000)
--- King County: 814

So just a small slice of the cases filed actually go to trial. (Of course, you need to know about trial practice even if your case doesn't go to trial. Settlement negotiations and motions practice are shaped by how you think the case would play out if tried.)

Trials in the Courts of Limited Jurisdiction in 2004

• Jury Trials

Civil trials set: 681; civil trials held: 78
--- King County: 145 civil trials set; 22 civil trials held
All trials set: 97,212; all trials held: 2,999
--- King County: 15,315 trials set; 884 trials held

• Non-jury Trials

Civil trials set: 4,886; civil trials held: 1,717
--- King County: 1,157 civil trials set; 325 civil trials held
All trials set: 23,158 civil trials set; all trials held 6,956
--- King County: 3,776 trials set; 1,623 held

OK, all those numbers are pretty dense. Try these:

• Just over 1% of civil cases filed in superior court go to trial!
• Less that 5% of criminal cases filed in superior court go to trial!
• Almost a quarter of the felony trials (i.e., criminal trials in
  superior court) in the state are in King County!
• 70% of the trials in the courts of limited jurisdiction are non-jury trials!

Categories: statistics

ABA - Tort Trial & Insurance Practice Section

Interested in personal injury law? Consider TIPS, the ABA's Tort Trial & Insurance Practice Section. Law students, if you belong to the ABA, then you can join the section free.

Some of the content on the section's website is limited to members. One freebie is TortSource, a newsletter that

highlights topical tort and insurance law issues and includes technology advice, practice tips and updates on continuing legal education programming. "When I Was A Young Lawyer," "Legislative Update," "In Motion" and a host of other unique columns round out each issue of this quarterly newsletter.

The summer 2005 issue had two pieces about appeals -- how to preserve issues for appeal and, once you get an appeal, oral argument advice for trial attorneys. Fall 2005 has a piece called "Let the Jury Draw the Conclusion":

The juror who comes to an independent conclusion will hold on to that deduction much more tenaciously than will a juror who is told what to think and decides to think that way only because that is what the lawyer said to do. * * * [Jurors who reach their own conclusions will] will listen more closely for the facts, analogies, and argument that support the conclusion and allow them to defend it in the jury room.

The fall issue also has several pieces about developments in employment law.

For discussion of policy questions, see the TIPS Task Forces. For example, the Task Force on Contingent Fees has a 66-page Report on Contingent Fees in Medical Malpractice Litigation (draft, Sept. 20, 2004)

The Emerging Issues Committee has a list of emerging issues, with some links to press releases, letters, etc. Students, looking for a paper topic?

Categories: ABA, tips, appeals, med-mal, attorney's-fees, empirical-studies,

Is it good to be considered a pit bull in the courtroom?

The Florida Supreme Court has sanctioned two attorneys for using a pit bull in their advertising (and in their phone number, 1-800-PIT-BULL) because the ads "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice." Florida Bar v. Chandler.

Carolyn Elefant has a post on MyShingle (her blog for solo practitioners) (that's where I got the link to the case -- thanks!). My Shingle: An Ethics Decision for the Dogs She includes ads from a firm that uses a Golden Retriever and an elephant and wristwatch with Georgetown's cartoon bulldog. Demeaning? She concludes "What a silly decision." There are several interesting comments, at least one defending the court's position.

Before going to MyShingle, I'd looked for a news story about the case. (I saw an AP snippet over the weekend.) One of the first things I found was:

Ed Gillespie was called ''President Bush's pit bull'' during the 2004 presidential campaign, when as chairman of the Republican National Committee he seemed to live on cable television trading snarls with Terry McAuliffe, his attack dog of a counterpart at the Democratic National Committee.

New York Times, July 6, 2005. (If you Google Gillespie pit bull, you'll see a bunch of examples.) It doesn't seem that he minds this -- or that Republicans as a whole feel demeaned because the chairman of the Republican Party has that nickname. It's ironic, because during the heat of the presidential campaign, it seemed that "trial lawyer" was used as an insult, but "pit bull" was a term of respect.

PS As a UW Husky, I considered finding dog images to match Elefant's Georgetown bulldog, but time is short. Go Dawgs.

PPS (Nov. 27) David Giacalone at f/k/a ethicalEsq offers a more current example of "pit bull" as a compliment for a Republican: President Bush's description of Harriet Miers as "a pit bull in size 6 shoes."

Categories: MyShingle, practice-of-law, advertising, dogs, cases

Specialized courts vs. juries

[POLICY] Are some cases too complex factually for a jury of ordinary citizens to sift through? Or is the American jury the best factfinder for all sorts of cases? Would we get "better" results if we had professional factfinders for patent cases? How about medical malpractice cases?

An article in the Oregon State Bar Bulletin discusses the issue, with quotations from a jury consultant, a plaintiff's attorney, and intellectual property experts. Janine Robben, Who Decides? Specialized Courts vs. the Jury of Peers, April 2005.

Categories: juries, specialized-courts, IP

WSBA considering amicus brief in case re DNA evidence gathering

[CASE] Twenty years after a 13-year-old girl was found raped and murdered, the police tried to match up DNA evidence with a suspect (the man who had been the boyfriend of the girl's older sister). They sent a letter to the defendant (he was then living in New Jersey), on the letterhead of a fictitious law firm, inviting him to join a fictitious class action. When he replied, they obtained enough saliva from the envelope he'd licked to match the DNA sample.

The Washington State Bar Association has been asked to write an amicus brief in the defendant's appeal to the Washington State Supreme Court, State v. Athan. The amicus committee recommends that "the appropriate issue to be addressed by the WSBA is the detrimental effect on the bar and the administration of justice if police are allowed to falsely pose as lawyers." The Board of Governors invites comments, and will decide at its next meeting, December 9-10. For more information see Notice of Request for WSBA to File Amicus Curiae Brief.

Categories: State-v-Athan, WSBA, DNA, practice-of-law,

Making the Leap From PI to IP

[NEWS] Since Texas has enacted tort reform measures, some personal injury firms are moving into intellectual property litigation. Here's a profile of a firm in Marshall, TX, home of the Eastern District of Texas, a court with a reputation for being friendly toward patent plaintiffs (in both bench and jury trials). law.com - Making the Leap From PI to IP, IP Law & Business, Nov. 14, 2005.

Categories: personal-injury, IP, tort-reform, practice-of-law,

Application of rape shield statute to exclude victim's email message

[CASE] A recent case raises several issues about the trial of a juvenile as an adult. Here I'd like to highlight the final issue discussed in the case: whether it was error for the trial court to exclude an email message from the victim.

The defendant (Posey) and the alleged victim (H.A.H.) were high school classmates. Prior to or around the time the met Posey, H.A.H. wrote an email message to someone else describing some rape fantasies and saying she would like a boyfriend to choke her and beat her. The police made copies of emails from the H.A.H.'s computer. The defense wanted to introduce this one to show that H.A.H. consented to the violence and intercourse with Posey and to rebut her claim that she was afraid of him.

The trial court found that the email was highly prejudicial. The court noted that "[a]nybody who's had an e-mail correspondence with anybody knows it's easy to say things during that correspondence that you wouldn't necessarily say to their face."

After discussing limited situations when a victim's past sexual history can be admitted despite the rape shield statute (RCW 9A.44.020), Division 3 found that the trial court did not abuse its discretion in excluding the email.
Find Result - 2005 WL 2982134

Categories: email, rape-shield, evidence, cases,

Ineffective asstance of counsel claims fail - discussion of defense counsel's trial tactics

[CASE] In an appeal of child molestation convictions, the defendant raised claims of ineffective assistance of counsel that give an interesting view of the defense counsel's trial tactics. State v. Cramer, 2005 WL 2858884 (Wash. App. Div. 2, Nov. 1, 2005) (unpublished), Find Result - 2005 WL 2858884.

Cramer contends that his trial counsel was constitutionally ineffective for several reasons. Primarily, he points to counsel's decision to cross-examine R.C. in a highly confrontational manner, which, by Cramer's account, could serve only to engender hate for Cramer in the jurors' minds. Cramer also maintains that his counsel was ineffective because he elicited unfavorable testimony; was repeatedly rebuked by the trial court for using improper impeachment procedures; failed to object to improper closing argument by the State; and acted unprofessionally in the courtroom.

I was particularly interested in the first issue -- the aggressive cross-examination of the child victim. The cross seemed to be so hard on the girl that the trial judge ordered the lawyer to do his questioning seated:

[T]his is my problem, sir, and this is why I told you to sit down, is that this witness is breaking down on the stand. I do not believe that badgering this witness is going to succeed for either side. If anything, if you look at your jury, they're tuning out this part of the testimony because they can't stand to watch this child go through that.

Not only did the questioning appear to be hard on the girl, but the defendant's reaction to it also made an impression on the judge. During sentencing, he told the defendant:

This child was on the stand for three hours, approximately. You know what really affected me about that testimony? Not so much what she said, but how you didn't react to it. You had absolutely zero expression while your attorney scathed her on the stand, skewered her six ways to Sunday.

And I'm thinking of those moments where he goes, [']You see your transcript. At this time and this place you said this?['] Trying to trip up this little girl. Okay. He did his job. But she broke down as a result of it. Okay.

But you didn't react, sir. And that really bothered me that a father, a biological father wouldn't react to that, seeing his own child put through that kind of torture.

On the ineffective assistance of counsel claims, the court concluded:

This court will rarely sustain an ineffective assistance claim where the 'entire record' on appeal 'reflects a vigorous and competent defense.' * * * Cramer received such a defense. This is reflected not only in the trial transcript, but in a record that contains detailed motions for discovery, continuance, a bill of particulars, dismissal, an arrest of judgment, and a new trial. Defense counsel's tactical decisions in representing Cramer did not constitute ineffective assistance. Were we to hold otherwise, such tactical decisions would be the norm with defense counsel intent on creating error for redress on appeal.

Categories: ineffective-assistance, cross-examination, child-witnesses, impeachment, cases,

Families fight at murder sentencing in Tacoma

[NEWS] On Thursday there was a scuffle between the families of a murder victim and his killer, sparked by a remark that the sentence was unfairly long, since the victim was 69 years old and "wasn't going to live forever." Families fight at murder sentencing in Tacoma, Seattle PI, Nov. 10, 2005.

Categories: sentencing, news,

Convicted rapist tells judge he's rude

[NEWS] Here's a courtroom incident from Georgia: Convicted rapist tells judge he's rude, Seattle PI, Nov. 11, 2005. The defendant's outburst got him an extra 5 days on his sentence (which was already 99 years plus two life sentences).

Categories: sentencing, judges, news,

Language Barriers to Justice

Last week, I had a brief post about working with interpreters. Today I came across Language Barriers to Justice in California, a report of the California Commission on Access to Justice (Sept. 2005).

Some facts from the executive summary:

• "40 percent of the state’s population speaks a language other than English in the home."
• "Nearly seven million Californians cannot access the courts without significant language assistance, cannot understand pleadings, forms or other legal documents, and cannot participate meaningfully in court proceedings without a qualified interpreter."
• "The right to have a state-funded interpreter in a criminal proceeding has long been recognized by the courts; however, in most civil proceedings — even those affecting fundamental rights — California does not recognize the right to an interpreter, and there are not adequate funds to pay for interpreters."
• "In recent years, demand for interpreter services has grown steadily while the number of interpreters available to meet that demand has dropped by more than 35 percent."

The commission recommends:

• adoption a comprehensive language access policy for courts.
• "specific plans designed to achieve the goal of guaranteeing such access, including adequate funding to provide for qualified interpretation and translation services; access to standard court documents (such as forms and instructions) in, at a minimum, those languages spoken by a significant number of the population using court services; and training and resources to assist court staff, administrators and judges in identifying and addressing language issues."
• setting up training packages and model protocols for court staff to implement the policies.
• reevaluating the system for training and certifying interpreters.
• evaluating "the role of lawyers and bar associations, legal services programs, law schools and law libraries."
• compiling data and conducting further research.

Categories: interpreters, access-to-justice

Direct examination tips

[TIP] The ABA's Section of Litigation offers "Tips from the Trenches.", currently "Old Dogs and new Tricks for Direct Examination," adapted from the Spring 2005 issue of Litigation:

One of the keys to improving our skills is to consider alternative forms of direct. Whether we adopt them in all cases, only with particular witnesses, only in particular cases, or not at all, the process of challenging, rethinking, and revalidating or modifying our direct examination techniques will make us better trial lawyers.

One interesting technique is using a series of short, very controlled questions to emphasize key points that might be missed if the witness gives a narrative answer in a paragraph.

Feb. 27, 2006: Since the current tip changes, the link no longer connects to this article. The old tips are archived -- but only for members. You can check out whatever the current tip is anytime.

Categories: ABA, tips, direct-examination

Congress passes law limiting civil actions against gun manufacturers, dealers, or importers

[LEGISLATION] Yesterday Congress passed and sent to the President the Protection of Lawful Commerce in Arms Act, S. 397. If signed, the law will limit civil actions against gun manufacturers and dealers in state and federal courts.

The legislative findings are:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

(3) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.

(4) The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act, and the Arms Export Control Act.

(5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

The NRA issued a news release calling the law a "historic victory." On the other hand, the Brady Campaign to Prevent Gun Violence had news releases terming the bill a "step backwards" and announcing that it would challenge its constitutionality if enacted.

Categories: firearms, torts, legislation, NRA, Brady-Center

Seattle Municipal Court hosts interpreter conference

[EVENT] The Seattle Municipal Court just hosted the Interpreter Consortium Conference, along with the National Center for State Courts, Oct. 15-19.

The news release says:

Seattle Municipal Court provides language and sign interpreters for over 60 different languages and dialects for hearings before the court and during proceedings. Interpreter services schedule with contract interpreters for an average of 420 hearings per month.

Wow.

[TIP] What should trial lawyers think about when working with interpreters? Here are some tips:

• Angela McCaffrey, Don't Get Lost in Translation: Teaching Law Students to Work with Language Interpreters, 6 Clinical L. Rev. 347 (2000).
• Seattle University Access to Justice Institute, Language Bank Attorney/Agency Information (includes links to "Important Tips to Remember When Working with Interpreter," "What the Interpreter Would Tell You," "In the Interview," and "Rules Regarding Telephonic Interpretation").
• Isabel Picado, An Attorney's Primer: Working with Interpreters, Proteus: Newsletter of the Nat'l Ass'n of Judiciary Interpreters and Translators, Winter-Spring 2000 (includes examples of ambiguities in English-Spanish translations).
• Maine Center on Deafness, Representing Deaf Clients: What Every Lawyer Should Know (July 30, 2004).
• FAQs on Interpreting from the Southern District of New York.

Categories: interpreters, King-County, event, tips

Judge accused of violating defendants' rights | TheNewsTribune.com | Tacoma, WA

[NEWS] The Commission on Judicial Conduct has filed a complaint against King County District Court Judge Mary Ann Ottinger (Issaquah). The complaint alleges that she denied the rights of 12 defendants, often by not advising them of their right to an attorney. Judge accused of violating defendants' rights | TheNewsTribune.com | Tacoma, WA.

The CJC's website has some documents in the case (but not the complaint), as well as the 2004 Stipulation, Agreement and Order of Reprimand in a 2004 case against Ottiger.

Categories: Commission-on-Judicial-Conduct, judges, right-to-counsel, Ottinger, news

Juror Stress

[RESEARCH] Is being on a jury stressful? Yes, in many ways -- from the disruption of one's daily routine to the burden of making a decision about someone's life or property. In a new article, two professors in psychology and law survey the research and outline possible responses. Monica K. Miller & Brian H. Bornstein, Juror Stress: Causes and Interventions, 30 T. Marshall L. Rev. 237 (2004), Find Result - 30 THUMARLR 237.

One intervention is debriefing -- and sometimes counseling -- particularly after a trial with upsetting testimony and evidence such as the Jeffrey Dahmer trial. One interesting question is whether offering such help to jurors would skew verdicts. If jurors in a capital case knew that counseling would be available, would they wrestle less with the magnitude of the decision to impose the death penalty?

The authors "discuss a variety of procedural changes (e.g., allowing jurors to take notes) courts can make" that would alleviate some stress -- e.g., the stress of dealing with complex testimony.

The final section of the article

concludes that, because jurors serve such an important function in our justice system, it is important that measures be taken to protect them from serious harm due to the stresses of jury duty. We suggest a two-phase intervention that includes a pre-trial video that prepares jurors for the stresses they may experience and a variety of post-trial interventions tailored to the needs of each individual juror.

This reminds me of my own reactions to jury duty. The last time I served it was in municipal court, and I was glad both that it was only four days away from my job and that the case was only possession of stolen property -- not a case with lots of upsetting or tragic facts.

Categories: debriefing, juries

Driving While License Suspended conviction reversed - insufficiency of evidence

[CASE] Criminal defendants often argue on appeal that the evidence was insufficient. Here is one of the rare successful times. Defendant was convicted of driving while his license was suspended or revoked in the first degree (RCW 46.20.342(1)(a)). That offense requires that the person driving had had his or her license suspended as an "habitual offender" under RCW 46.65. In this case, the prosecution introduced evidence that the license had been suspended, but not evidence about why it was suspended. The defendant's statement on the stand "I'm suspended in the first degree" was not enough to show that element. State v. Smith, --- P.3d ---, 2005 WL 2386250 (Wash. Sept. 29, 2005), Find Result - 2005 WL 2386250.

By the way, this case also has a reminder to preserve issues for appeal -- the Supreme Court did not address a hearsay argument about the license revocation record because defense counsel had not done so.

Categories: criminal-law, sufficiency-of-evidence, appeals, cases

Mixed up jury instructions lead to reversal in part

[CASE] The defendant was convicted of unlawful possession of a firearm, attempting to elude police vehicle (RCW 46.61.024), and other offenses. The eluding count had a firearm enhancement (RCW 9.94A.533).

Here's the mix-up: Count I of the information charged him with possession of a 9 mm handgun and Count II charged him with possession of a .22 caliber handgun -- but both the defense attorney and the prosecutor reversed them in closing argument. And the jury instructions said that to convict on Count I, the jury must find that he had a .22. Not only that: the prosecutor conceded in closing argument that there was insufficient evidence to convict with respect to the .22 and asked the jury to acquit on that count. The jury convicted on Count I and acquitted on Count II.

What now? The trial court found that the conviction could stand because the mistaken jury instruction was a clerical error (see CrR 7.8). On appeal, Division 2 held that it was not a clerical error but a judicial error, and reversed. State v. Rooth, --- P.3d ---, 2005 WL 2361790 (Wash. App. Sept. 27, 2005)(published in part), Find Result - 2005 WL 2361790.

The court upheld the firearm enhancement to the conviction for eluding a police officer, finding that there was sufficient evidence that the driver had a firearm.

The unpublished portion of the case discusses more evidentiary and procedural issues, including alleged ineffective assistance of counsel (among other things, for chewing tobacco), prosecutorial misconduct, and improper opinion testimony.

Categories: jury-instructions, firearms-enhancement, cases

U.S. Judicial System: Selected Websites

On Thursday, the UW law school hosted a group of international visitors who are in the U.S. as part of the State Department's International Visitor Leadership Program and hosted in Seattle by the World Affairs Council.

The 16 visitors were lawyers, government officials, and judges from 15 countries, interested in all aspects of the U.S. judicial system. On Friday they were going to the Seattle Immigration Court and to a King County Drug Diversion Court.

It was an interesting group – coming from places as diverse as Bhutan and Israel, Tunisia and the India – and I enjoyed talking with them about legal education and our legal system.

The group had asked for information about LexisNexis and about sources for continuing their study of the U.S. judicial system once their visit to the U.S. is over. So during my time with them I gave them a demo and showed them a variety of sites they might find helpful. Trial ad folks might also find the sites useful, so here's the guide we posted for the visitors: U.S. Judicial System: Selected Websites.

Categories: court-system, cool-website, State-Dept, World-Affairs-Council

Trial Theater

Trial Theater is the website of Elliott Wilcox, an experienced trial lawyer in Florida. The site advertises his consulting and training business, but it also offers some freebies.

You can sign up to get Trial Tips Newsletter each week via email. Check out the archive of "expanded" issues (every five or six weeks, the issue is longer than usual, adding interviews and book reviews). The tips seems practical and focused. I like the eclectic selection of books in the "Trial Lawyer's Library" section -- Wilcox ranges Stephen King's On Writing to Malcolm Gladwell's Blink: The Power of Thinking Without Thinking to Dr. Seuss's great Green Eggs and Ham. (And, yes, he draws good lessons for trial lawyers from Dr. Seuss!)

Other freebies worth a look are:

• "Tips for the Beginning Prosecutor" and
• an Evidence Log available in pdf or Word.

Categories: Trial-Theater, tips, cool-website,

Open for comments

When I set up this blog, I selected an option that limited comments to "members" of the blog. (The members I invited were the faculty of the Trial Ad program.)

I did that largely to limit spam. I didn't want a zillion invitations to enlarge my bank account or anything else.

Now Blogger has a feature that should limit spam (posters have to type in a word that automated spammers can't "see"), so I'm opening up the comments to anyone. Please post if you have a comment (about trial advocacy, of course).

Categories: notes-about-the-blog

Letter to wife (and others) not covered by marital privilege

[CASE] The defendant clearly addressed the letter to his wife: “Kimberly, honey, I hope to God you never get to read this letter.” So why could it be admitted at his trial for the bank robbery that took place the day he left it for her?

The letter was several letters in one. Over the course of seven pages, the defendant wrote to his wife and then, on the same sheet of paper, “To Debbie, Larry, & Naomi,” and then “To Marc, Christy & Nicole, & Krystal,” and so on. Since the letter was addressed to twenty-four people and was not intended for his wife alone, the 9th Circuit affirmed the district court’s ruling that the marital privilege did not apply. United States v. Strobehn, 421 F.3d 1017 (9th Cir. Aug. 31, 2005).

The 9th Circuit also affirmed the district court’s ruling that an FBI agent could testify as an expert about the model of the shotgun in the bank robbery security photos. The defense argued that the jury could compare the photos with the gun themselves (citing a case where an expert had not been allowed to testify about the identity of a person in a photo). But the court reasoned that the FBI agent’s expertise would make him better at the comparison, since he would know what features to focus on. (The model looks like this.)

(In addition to addressing these two evidentiary issues, the panel affirmed a sentence enhancement for “forced accompaniment,” over a dissent by Judge Betty Fletcher.)

Categories: evidence, privilege, experts, firearms, sentencing, cases,

Making a Better Record: Tips from a Court Reporter to His Lawyer Child

[TIP] I just came across this piece in the August 1998 issue of the Washington State Bar News. Sure, it's an old article, but the tips are great and you probably haven't seen it (if you're a student or new to the profession) or you've forgotten it (if you dutifully read this issue of the Bar News when it hit your mailbox seven years ago).

William Macauley, a retired court reporter (whose work included depositions of H.R. Haldeman and Richard Nixon and work in the Ford Pinto and WPPSS cases) wrote Making a Better Record: Tips from a Court Reporter to His Lawyer Child. He began:

My dear child:

Congratulations on passing the Bar. You ask if I can pass along tips from my career as a court reporter that would help you in your chosen career as a trial lawyer. Boy, can I! Here's a buffet of tips you can choose from which I guarantee will help you make a better record in your practice and make you more record-conscious.

Lawyers spend years learning their craft and draft pleadings meticulously, yet when one speaks really well, we view him with wonder, gratitude and, yes, admiration. I feel safe in saying, with all due respect, that 90 percent of all trial lawyers leave room for improvement. Here are some omissions and commissions that apparently aren't dwelt upon in law school or CLE seminars, and that will help you produce a true, complete and impartial record.

Categories: transcript, record, court-reporters, tips

law.com - 9th Circuit ADR Case Tests Court's Role as Referee

[CASE] law.com - 9th Circuit ADR Case Tests Court's Role as Referee

An en banc panel of 9th Circuit judges seemed to signal Tuesday that when it comes to deciding if a mandatory arbitration agreement is fair, judges -- not arbitrators -- should have the last word.

But some judges who spoke during hour-long arguments in the closely watched case sounded wary of opening the courtroom door to litigants unhappy with arbitration. Some also wondered who should determine whether it's unconscionable to make a Californian fly to Boston for an arbitration.

* * *

From The Recorder. The case is Nagrampa v. MailCoups, 03-15955. Earlier proceedings: 401 F.3d 1024 (9th Cir. March 21, 2005) (holding that question whether arbitration clause was a contract of adhesion was for arbitrator to decide); 413 F.3d 1024 (June 28, 2005) (granting rehearing en banc).

Categories: mandatory-arbitration, cases,

Are Your Jurors Tuning Out Expert Witnesses?

[TIP] Are Your Jurors Tuning Out Expert Witnesses? offers six tips for making experts' testimony accessible to jurors. The tips are illustrated by examples from a variety of cases -- a metaphor to explain "reverse stock split," a simple picture to show the difference between "equivalent" and "identical," and so on. The article is from The Recorder (a Bay Area legal newspaper).

Categories: experts, juries, tips,

law.com - Federal Courts May Face Flood of Price-Fixing Actions

[NEWS] The National Law Journal reports:

An unlikely marriage between the Department of Justice's amnesty program in price-fixing cases and the recent reform of federal class action law has had an unexpected but profound effect on civil antitrust actions.

law.com - Federal Courts May Face Flood of Price-Fixing Actions

Categories: antitrust, class-actions, legislation, news,

District judge in Tacoma

[NEWS] Judge Franklin Burgess, Western District of Washington, has retired to senior status. A bipartisan merit-based screening committee, formed by the White House and Washington's two senators, will assist in the search for his successor. The new judge will join Judge Ronald Leighton as one of two active federal district court judges sitting in Tacoma. Information about the screening committee and the application process is on WSBA's website.

The big national news focuses on the new Chief Justice and the next new Associate Justice, but a lot of the important work of the judicial system is done in the district courts. (That's where trial advocacy takes place!)

Categories: judicial-selection, judges, Burgess, WSBA, news,

Other suspect evidence, reviewability of preliminary ruling, DNA on a "silver platter"

[CASE] When can a defendant present evidence that someone else committed the crime? Division I discussed the issue in State v. Mezquia, 118 P.3d 378 (Wash. App. Aug. 22, 2005) Find Result - 118 P.3d 378

The defendant was convicted of first degree felony murder in connection with a rape. The defense wanted to present evidence that the victim's boyfriend killed her: the night before her death, the victim had been angry at the boyfriend (who was not present) and his relationship with someone else; the victim had said she was looking for the boyfriend; the boyfriend had assaulted the victim in the past. The trial court excluded the evidence because it did not sufficiently link the boyfriend to the killing.

Division I affirmed:

A criminal defendant has a constitutional right to present a defense consisting of relevant, admissible evidence. * * * In order to be relevant, and therefore admissible, the evidence connecting another person with the crime charged must create a trail of facts or circumstances that clearly point to someone other than the defendant as the guilty party. * * *. The evidence must establish a nexus between the other suspect and the crime. * * * The defendant has the burden of showing that the other suspect evidence is admissible.

(citations omitted)

The defendant also sought review of the trial court's preliminary ruling with respect to 404(b) evidence, but the Court of Appeals found the record inadequate for review. Here's the deal: The defense had another "other suspect" for the crime, a cabdriver. The court ruled that there was enough evidence tying this man to the crime to make it admissible. The state had a witness who would have testified on rebuttal that she had been assaulted by the defendant if he raised the issue of identity. The defense asked the judge for an "advisory ruling" about whether that 404(b) evidence could come in. The court said yes. The defense decided not to introduce the evidence about the cabdriver and the prosecution did not use the 404(b) evidence. (Confused yet?) Anyway, the ruling could not be reviewed because it was only preliminary and any harm was only speculative.

The murder-rape took place in 1993. The case was open for many years. A DNA sample of saliva found on the victim was entered into a national database. In 2002, the sample was matched to a sample from the defendant, at that time in Florida. The defendant argued that it was error to admit the DNA evidence because of constitutional errors in the way Florida collected the DNA.

[T]he admissibility of the DNA sample obtained in another jurisdiction is governed by the silver platter doctrine under which evidence that is apparently lawfully and independently obtained in another jurisdiction is admissible in Washington, even if such evidence if obtained in Washington would violate Washington law.

The appellate court found that the imposition of an exceptional sentence violated the defendant's rights under Blakely v. Washington, because the jury did not find the presence of aggravating factors beyond a reasonable doubt. The conviction was affirmed and the case remanded for resentencing.

Categories: other-suspect-defense, 404(b), DNA, silver-platter, exceptional-sentence, Blakely-v-Washington, cases,

Westlaw Pleadings and Motions

I saw an ad for Pleadings and Motions databases on Westlaw. I took a few minutes to play around. It looks interesting. The documents are from a variety of state and federal courts, and include a wide range. Here's a sample:

• Petitioner's Objections and Responses to Respondent's First Set of Interrogatories
• Post-Trial Brief of Joint Defendants
• Memorandum of Law in Support of the Deutsche Bank Defendants' Motion to Exclude the Expert Testimony
• Defendant's Motion to Compel Independent Psychiatric Examination in Accordance With Federal Rule of Civil Procedure 35(a)
• Plaintiffs' Brief in Support of Cross Motion for Partial Summary Judgment and a Reply to the Motion for Partial Summary Judgment of the Defendant
• Brief in Opposition to Petition to Open Non Pros Judgment

The ad suggests that you can use these databases "[t]o see how well-thought-out legal arguments are structured" or "[a]s a starting point for framing your own documents." Sure, but note that there is no quality control -- the motion you find might have been written by an attorney who's not very good or was having a bad day. Cutting and pasting is easy, but it isn't always wise. But, with that caveat, these databases do seem useful.

It appears that Washington federal court documents are included, but not state court filings -- yet.

Categories: motions, Westlaw,

Div. 1 addresses evidentiary issues

[CASE] Division 1 addressed a variety of interesting evidentiary issues in a recent appeal from a murder conviction. State v. Moses, --- P.3d ---, ( no. 53580-3-I (Sept. 19, 2005) (published in part).

The defendant was convicted of murdering his wife. The defense offered the alternate explanation that she had committed suicide.

• Was it a violation of the defendant's confrontation rights under Crawford to admit police testimony about the wife's statements made during an interview after a domestic violence incident? Yes.
• How about admitting testimony from a doctor and a medical social worker? No, the wife's statements were made for purposes of medical diagonosis and treatment. There was not an expectation that they were "testimonial."
• [From here on is the unpublished part, with no precedential value -- but still some interest as examples of evidence in action.]
• Was it error to admit evidence about the defendant's past assault of and arguments with his wife? No. It was admissible to prove motive and res gestae.
• Was it error to exclude testimony of a defense expert who would have testified about the wife's depression and risk of suicide? No. The jury did hear testimony from four medical providers. No abuse of discretion in finding this doctor's testimony would not be helpful to the trier of fact under ER 702.
• What about the trial court's limiting the defense use of the wife's two journals? No abuse of discretion.
• What about testimony by the medical examiner and ballistics expert that the death was a "homicide"? OK: not impermissible opinion testimony.

Affirmed, but remanded for resentencing.

Categories: evidence, hearsay, Crawford-v-Wash, 404(b), experts, 702, cases,

law.com - Judicial Conference Supports Citing Unpublished Opinions

[RULES] law.com - Judicial Conference Supports Citing Unpublished Opinions.

The policy-making body of the federal judiciary on Tuesday endorsed a sweeping rule change that will allow lawyers to cite unpublished opinions in federal appeals courts nationwide beginning in 2007.

Categories: rules, unpublished-opinions, appeals, Judicial-Conference,

Program on using court records in research & teaching

[EVENT] [RESEARCH] UMKC School of Law is hosting an interesting conference Oct. 7-8 on using court records in research and teaching. I couldn't find the program announcement on the web to link to, so I'm sharing excerpts from an email message posted to several listservs by one of the organizers, Paul D. Callister. Registration form here.

Federal Civil Court Records of the National Archives: Opportunities for Empirical, Historical and Legal Research and Curriculum Design

Court Data and Selection Bias
Ahmed E. Taha, Assoc. Prof., Wake Forest Univ. School of Law
-- Prof. Taha will describe how empirical studies of litigation are subject to selection bias due to the lack of detailed data about court cases. * * *

Keynote Address:The Importance of Preserving Historic Information About the Legal System
Theodore Eisenberg, Henry Allen Mark Professor of Law, Cornell Law School
-- Prof. Eisenberg will discuss of the importance of historical knowledge about the legal system's performance in assessing contemporary debate about civil justice, such as the need for historical data about award amounts, class actions, pretrial dispositions and motions to exclude evidence.

The Long Road to Dred Scott: Suing for Freedom in the Shadow of Slavery
David T. Konig, Prof. of History and Law, Washington Univ.
-- Prof. Konig will describe the St. Louis Circuit Court Historical Records Project, * * * He will examine the way in which archival court records of "freedom suits," including that of Dred Scott, have served as the basis for interdisciplinary undergraduate research courses * * *.

Serendipity in the Stacks, Fortuity in the Archives: Preservation, Browsing, and Legal History
Michael Hoeflich, Kane Professor of Law, Univ. of Kansas
-- Prof. Hoeflich will discuss serendipitous discoveries in legal history, and history in general, deriving from unintended discoveries in collections of sources. He will also address the potential detriment to the historians of tomorrow if their historical records-to-be are destroyed today.

Researching Federal Civil Court Records
Lawrence H. Larsen, Prof. Emeritus of History, UMKC
-- * * * Prof. Larsen will speak about his use of archival records in connection with his teaching and scholarship, including the writing and publication of Federal Justice in Western Missouri: The Judges, the Cases, the Times.

The Washington University Civil Rights Litigation Clearinghouse: Using Court Records for Research, Teaching, and Policymaking
Margo Schlanger, Prof. of Law, Washington Univ. in St. Louis
-- Prof. Schlanger will describe the soon-to-be-launched Civil Rights Litigation Clearinghouse, * * *.

Using Missouri State Court Records in Socio-legal Research
Gary Kowaluk, J.D., M.A. in Sociology, Ph.D. ABD, UMKC Department of Sociology
-- Mr. Kowaluk will discuss * * * the death penalty and wrongful convictions in Missouri using data obtained from Missouri Trial Judge Reports. * * *

Categories: empirical-studies, UMKC, event,

Deposition of alleged confidential source in libel case

[CASE] Sports Illustrated reported in 2003 that Alabama football coach Mike Price had two women in his hotel room and had sex. Price (who lost his job) is suing for libel.

Price's attrorneys are trying to find the reporter's confidential source. The 11th Circuit conditioned a disclosure order on their first deposing four women, one of whom is likely to be the source. Price v. Time, Inc., 416 F.3d 1327, 1347 (11th Cir. 2005). If one of the women falsely denied that she was the source, counsel for defendant was to notify the court of her perjury.

Last week, the court addressed the issue on rehearing. In addition to the discovery challenges of a libel case with a confidential source, this case illustrates how an attorney can be bound by a concession made in oral argument:

Through their counsel defendants have steadfastly refused to divulge their confidential source for the article in question; they have attempted to shield her identity by every legal means; they have insisted that the plaintiff depose the four most likely suspects; and they have argued that deposing those women is a way to get at the truth that is less painful to their interests than requiring that they themselves disclose it. Now they say that if the confidential source lies under oath and obstructs the pathway to the truth that their counsel has urged us to take, he has no duty to remove the obstruction by reporting the lie. We have some problems with that position.

We need not resolve those problems in this case. We asked counsel during oral argument if he would inform the district court should the confidential source falsely deny under oath that she is the source. He assured us he would. We took that assurance into account in reaching our decision. That is enough to hold counsel to his word. Even if lawyers cannot be counted upon to inform the court on all occasions when a witness is perjuring herself, we think courts still have the right to hold lawyers to their word. And counsel for the defendants, to be fair, does not suggest to the contrary.

The court accepted a compromise the attorney presented. If the clients revealed the source -- which they would be required to if it wasn't revealed by the depositions -- then it would be unnecessary for the attorney to disclose the perjury because it would be evident.

We amend our prior opinion in only this respect: Insofar as our decision is concerned, if the confidential source falsely denies under oath that she is the confidential source, counsel for the defendants has no obligation to report her perjury to the court if his clients’ disclosure pursuant to our decision reveals her identity as the source. If for any reason his clients’ disclosure does not reveal that the witness lied when she denied being the confidential source, counsel will be obligated to report her perjury to the court. This solution will remove counsel from the difficult situation he is in, unless his clients attempt to defy a court order, and we are confident they will not do that.

Price v. Time, Inc., No. 04-13027 (11th Cir. Sept. 16, 2005).
The Fulton County Daily Report's article about the case is here.

The 11th Circuit is not one of the jurisdictions this blog usually watches. For a local angle, recall that Mike Price had just left his coaching position at Washington State University when this story broke.

(I'm not obsessed with sports -- it just happens that interesting discovery cases involve college sports two days in a row.)

Categories: depositions, confidential-source, libel, sports, press, cases