Friday, December 30, 2005

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. - 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.

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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.

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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.
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Thursday, December 29, 2005

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.

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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.

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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.

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Thursday, December 22, 2005

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.

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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.

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Monday, December 19, 2005

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.)

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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.

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Friday, December 9, 2005

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:
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.)

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Thursday, December 8, 2005

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

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Sunday, December 4, 2005

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.

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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.
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Thursday, December 1, 2005

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.

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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:

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