Wednesday, October 26, 2005

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.

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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.

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Friday, October 21, 2005

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.

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Thursday, October 20, 2005

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.

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

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Wednesday, October 19, 2005

Judge accused of violating defendants' rights | | 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 | | 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.

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Thursday, October 13, 2005

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.

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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.

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Sunday, October 9, 2005

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.

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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.

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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:

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Thursday, October 6, 2005

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).


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.)

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Tuesday, October 4, 2005

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: , , , - 9th Circuit ADR Case Tests Court's Role as Referee

[CASE] - 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).

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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: , , , - 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. - Federal Courts May Face Flood of Price-Fixing Actions

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