Harder to Seal Records

Continuing its Your Courts, Their Secrets series, the Seattle Times reports that the series has made a difference. No cases have been sealed in King County Superior Court since the series began in March; hundreds of cases formerly sealed have been opened up. "It's a new day" as secrecy fades, Seattle Times, Dec. 31, 2006.

Although the Times was investigating state cases, the local federal court (W.D. Wash.) also tightened its rules, saying lawyers can no longer file pleadings under seal without the permission of a judge.

The article recounts the legal efforts to get cases unsealed, from trying to serve parties who are only vaguely identified to countering motions from those who wanted to keep cases under wraps. Three Davis Wright Tremaine lawyers (Marshall Nelson, Eric Stahl, and Lissa Shook) represented the Times in most of the cases.

An accompanying story discusses the UW's $3.2 million settlement of a medical-malpractice case brought against the UW Medical Center and the manufacturer of an insulin pump. UW finally tells what it paid to settle suit, Seattle Times, Dec. 31, 2006.

Hats off to the reporters who have done such impressive work on this series: Ken Armstrong, Justin Mayo and Steve Miletich.

Juror Locked in Bathroom: Tainted Verdict?

The New York Appellate Division upheld a conviction over a claim that the trial judge should have investigated whether a juror who locked herself in the bathroom for 75 minutes was emotionally fit to serve on the jury. Conviction Upheld Despite 'Emotionally Upset' Juror, N.Y.L.J. (law.com), Dec. 8, 2006.

NY Judge Says Drowsy Lawyer Provided Good Assistance

Lawyer Provided Excellent Defense Despite Sleeping During Trial, ays Federal Judge, N.Y.L.J. (law.com), Dec. 15, 2006.

Denying a new trial, the judge noted that the lawyers didn't doze much -- and it was mostly during some tedious, routine testimony about gambling machines and agent surveillance of an organization. The judge kept the courtroom cold (telling the jurors to bring sweaters) and made sure the lawyer was supplied with ice water. In the end, his client was found not guilty on more counts than any of his codefendants.

"Civil Justice Attorneys"

The Fulton County (Ga.) Daily Report has a small piece about a lawyer changing firms in Atlanta. What's out of the ordinary is that the firm's new business cards will identify the lawyers as "civil justice attorneys" instead of "trial lawyers," following ATLA's name change to the American Association for Justice. "Civil justice attorney better defines what we dol. Our goal is not to get to trial. It is to obtain full, fair and just compensation for injured people and their families." A Trial Lawyer by Any Other Name ..., Fulton County Daily Report (law.com), Dec. 29, 2006.

Although the American Trial Lawyers Association voted on the name change last summer (see earlier posts here, here, and here, it only made the change official this month (letter, Dec. 5).

N.J. Judge OKs $14.5M Settlement in Class Action Over Bad Jeep Brakes

N.J. Judge OKs $14.5M Settlement in Class Action Over Bad Jeep rakes, N.J.L.J. (law.com), Dec. 29, 2006.

A New Jersey judge has approved a $14.5 million settlement in a national class action alleging defective brakes on Jeep Grand Cherokees.

Superior Court Judge Jonathan Harris, in a ruling released on Tuesday, certified, for settlement purposes, a class consisting of those who bought or leased 1.2 million 1999 to 2004 Jeep Grand Cherokees.

Locked Up for Christmas

New York attorney Anthony Colleluori vents about the NYS Dept of Criminal Justice Services. His client was arrested on Dec. 23 for assault in the second degree. The case is weak and the client has a job and family -- but the judge COULD NOT set bail because there wasn't a rap sheet yet because the Dept of Criminal Justice Services had not processed the client's fingerprints. That Lawyer Dude: NYS Department of Criminal Justice Services Christmas Message To The Families Of Accused Felons: BAH HUMBUG, Dec. 24, 2006.

Gee, when I watch "Law and Order," it seems they "pull the sheet" almost immediately. Who knew that TV wasn't the same as real life?

Intimate partner violence declining in US: DOJ report

Intimate partner violence declining in US: DOJ report, Jurist - Paper Chase, Dec. 29, 2006.

Nonfatal domestic violence is down. And homicide by intimate partners is down -- especially for male victims. The Bureau of Justice Statistics publication is here. A press release (Dec. 28) summarizes the findings.

8th Cir. Rejects Sentence for Mom Who Aided Pedophile

The 8th Circuit rejects of district court's downward variance from the sentencing guidelines in a case with disturbing facts. Court Throws Out Light Sentence for Mom, Washington Post, Dec. 19, 2006.

A woman pleaded guilty to aggravated sexual abuse and conspiracy to commit sexual abuse: she had "rented" her 9-year-old daughter to a pedophile, for $20 a session, often holding the girl down while the man molested her. The district court sentenced her to 17 1/2 years in prison, the minimum under the federal sentencing guidelines. The 8th Circuit remanded for reconsideration in light of United States v. Booker, 543 U.S. 220 (2005). The district judge then sentenced her to 10 years, giving her leniency because of her history of mental health problems and substance abuse. The 8th Circuit found that the sentence was unreasonable because it did not properly take into account the seriousness of the offense. the "sentence quite simply is not proportional to the circumstances of the crimes and the persons involved." United States v. Kane, 06-1103 (8th Cir. Dec. 18, 2006).

See comments at Sentencing Law and Policy.

Cohen Reviews the Year

Washington Post columnist Andrew Cohen reviews the year's legal news, decrying abuses of civil liberties -- and widespread indifference to the abuses. The Legal Year in Review, Washington Post, Dec. 29, 2006.

Supreme Court Reverses 9th Cir. Button Case

The Supreme Court reversed a 9th Circuit case granting habeas relief to a defendant during whose trial spectators wore buttons with pictures of the victim. Carey v. Musladin, 05-785 (Dec. 11, 2006).

The Court found that it was error to grant habeas because the California court's decision was "contrary to" or "an unreasonable application of" "clearly established Federal law." 28 U.S.C. 2254(d)(1).

Jurist's summary is here.

Portland (OR) archdiocese files new bankruptcy plan reflecting $75M sex abuse settlement

JURIST - Paper Chase: Portland archdiocese files new bankruptcy plan reflecting $75M sex abuse settlement, Dec. 19, 2006.

Bush Issues Pardons, but to a Relative Few - New York Times

Bush Issues Pardons, but to a Relative Few, New York Times, Dec. 22, 2006.

For lots of information about presidential pardons -- law, procedure, scholarship, cases, etc. -- see Jurist's Presidental Pardons page.

Did Lacrosse DA Break Ethics Rules?

After months of investigation, the North Carolina State Bar yesterday brought ethics charges against Durham District Attorney Mike Nifong for his conduct in prosecuting members of the Duke lacrosse team for sexual assault in the case that made national headlines last March. Nifong broke rules, Bar alleges, News & Observer, Dec. 28, 2006. At this point, three men from the team are charged with first-degree kidnapping and first-degree sexual assault; rape charges have been dropped.

If the News & Observer site makes you register (and you don't want to bother), see Charge could kick Duke prosecutor off case, CNN, Dec. 29, 2006.

The Bar's complaint alleges that Nifong knew or should have known that his statements to the media "would have a substantial likelihood of materially prejudicing" a trial of the matter, in violation of Rule 3.6(a); that his statements had "a substantial likelihood of heightening public condemnation of the accused in violation of Rule 3.8(f)"; and that his conduct was "prejudicial to the administration of justice in violation of Rule 8.4(d)." pp. 15-16.

(North Carolina's Revised Rules of Professional Conduct are here and here. Like Washington's Rules of Professional Conduct, they're based on the ABA's Model Rules, so they're very similar.)

Thanks for the lead: Mary Hotchkiss.

What Do YOU Think About Trial Ad Notes?????

Readers --

As always, I'd love to hear if you find this blog useful or interesting. If you have ideas for posts -- or would like to write a little something yourself -- please let me know (whisner @ u.washington.edu).

I'm going to need to switch over to a new version of Blogger pretty soon. An advantage: I should be able to label posts more easily. A disadvantage: I might not be able to carry over the tagging system I've had (with the pull-down menu where you can find posts on particular topics).

(1) Would it be better to have dozens of detailed labels or just a handful of broad categories?

Having broad categories would make for a cleaner, simpler layout.

Having many labels would let me continue to tag areas of law (criminal law, health care, bankruptcy, immigration, ethics) and individual names (Coughenour, McMurtrie, Robinson).

If broad, what broad categories would be helpful? I'm thinking of:

• Studies & Scholarship (would include empirical studies, government reports, statistics, law review articles)
• Tips
• News
  
• Legislation & Rules (would include federal and state statutes and court rules)
• Cases (would include appellate opinions) (should it also include news stories about trial-level cases?)
• UW (would include comments about events at the UW, Trial Ad faculty in the news, etc.)
• Resources (would include books, cool websites, etc.)

(I believe I'll be able to assign more than one label to each post.)

Would you like to see any sorting by jurisdiction (Washington State, Other States, Federal)?

(2) Would anyone miss the detailed tags I've had? (I haven't inserted any since Nov. 2. Not enough time.) Have you ever used them?


(3) Does anyone use the little search box in the upper left corner?




You can comment by clicking on "COMMENTS" at the end of this post. Or send me an email message (whisner @ u.washington.edu).


THANKS!

Parenting Plan Forms en Espanol

The Northwest Justice Project has posted a new translation on Washingtonlawhelp.org: Parenting Plans and Child Support for Dissolution Cases and Modifications of Dissolutions Cases / Planes de Crianza y Manutención de Menores para casos de Disolución (Divorcio) y Modificaciones de casos de Disolución. This is a big packet of forms and instructions -- 110 pages in all -- translated by a court-certified interpreter/translator.

Instructions in the packet are all in Spanish, and then the official court domestic relations forms has the Spanish translations inserted, line by line. A caution on the front of the packet reminds users that all the forms have to be filled out in English -- but having the line-by-line translations should make it so much easier for those whose primary language is Spanish.

Surely there are plenty of Spanish speakers who can function in English day to day but would have trouble with lines like "Unless an emergency exists, the parents shall use the designated process to resolve disputes relating to implementation of the plan, except those related to financial support." The translations should help them past these hard parts. (Of course, some native speakers of English might lack the literacy skills to handle the forms smoothly, but that's another issue.)

Having accessible forms for domestic relations is critical. In several jurisdictions studied, at least one divorcing party has no lawyer in 70-80% cases. (See post at Shlep.)

In Washington State (according to the 2000 census), there are over 321,000 people over 5 who speak Spanish at home. Over 155,000 of them speak English "less than well." Table.

Thanks for the lead: Michele Storms.

Can You Continue to Handle Case You've Put on the Big Screen?

The California Supreme Court is considering whether a prosecutor can stay on a murder case after serving as an adviser to a film about it. The Court of Appeals said that the prosecutor must be recused but the DA's office could continue. Calif. High Court Takes Up Recusals Over Film, Book, The Recorder (Law.com), Dec. 22, 2006.

The case being reviewed is Hollywood v. Superior Court, Cal. App. (2d Dist. Oct. 5, 2006). (The defendant is actually named Jesse James Hollywood.)

The movie, Alpha Dog, is due to be released Jan. 12. No matter who the prosecutor is, won't it have some effect on the defendant's trial to have a big movie depicting what's supposed to be his life. (The parents in the movie are Bruce Willis and Sharon Stone -- that's some star power!) At least the main character in the movie is named Johnny Truelove, not Jesse Hollywood. But still, isn't there a risk of tainting the jury pool? IMDb's plot outline is "A drama based on the life of Jesse James Hollywood, a drug dealer who became one of the youngest men ever to be on the FBI's most wanted list."

On its own motion, the California Supreme Court is reviewing a similar case -- a challenge to a prosecutor who wrote a crime novel about a date rape similar to the one the defendant is accused of. Haraguchi v. Superior Court, Cal. App. (2d Dist. Oct. 5, 2006). (Earlier post is here.)

Blog Sex Trial

A Senate aide wrote in her blog about her sex life. Although she meant her blog to be read only by a few friends, another blogger linked to it and it became something of a hit. She was fired. Her boyfriend sued her. Blog sex scandal trial could spank protagonists, Seattle Times, Dec. 27, 2006.

the Washingtonienne lawsuit has become a study into when to make a federal case out of something and when to just let it go away. It's a question lawyers wrestle with all the time.

Lanny Davis, the former special counsel to President Clinton who now advises companies during times of crisis, tells clients to decide whether they want justice or simply to set the record straight and get a message across.

"If you're looking for justice, the court system is the only thing you have," Davis said. "If you're looking to get the full story, good and bad, into one coherent narrative, the court system is perhaps the worst possible forum."

Not So Many Interlock Devices

When they get their licenses back, people with DUI convictions are required to have ignition interlock devices that will prevent their cars from starting if they've been drinking. But it appears that a lot of people ignore the requirement. About 28,000 drivers are covered, but only 4,400 of the devices have been installed. (The disparity is much larger than the number of drivers who quit driving after their DUIs.) DUI offenders ignore orders to add breath tester to cars, Seattle Times, Dec. 26, 2006.

The article discusses the state's lack of an enforcement mechanism. New Mexico, by contrast, has special enforcement units -- as many as six officers in one county.

Amy Freedheim, the senior deputy prosecutor who heads the felony DUI unit for King County, says that interlock violations are generally caught only when the offender is pulled over for something else.

"Some people blatantly disregard the order; some people say they can't afford them," she said. "You don't know if they're on the car unless they get caught."

To keep in mind the reason for her work, Friedlander displays photos of people whose lives were taken by drunk drivers.

The law requiring ignition interlock devices is the Mary Johnsen Act, Laws of 1998, ch. 210 (amending RCW 46.20.720 and 46.61.5055). See also RCW 46.20.391(b) (requirement that applicant prove to Dept of Licensing that he or she has the interlock device).

Looking for Good Law Blogs?

Looking for good law-related blogs? Check out Blawg Review, which has weekly installments describing law blogs (blawgs). This week's offering is Blawg Review Awards 2006.

Congratulations to Shlep: the Self-Help Law ExPress, which was named Best Law Blog in the Public Interest. Shlep is the brainchild of David Giacalone, who keeps the posts flowing. (I'm on the Shlep team and contribute from time to time, but David posts more than the other teammates and I put together.)

Congratulations also to Evan Schaeffer, whose posts from I often mention, for being recognized for "a lifetime of achievement in blog years" for Evan Schaeffer's Legal Underground and Illinois Trial Practice Weblog. Evan also made it onto Dennis Kennedy's Blawggies list, with Illinois Trial Practice Weblog being named the Best Practice-Specific Legal Blog. Kennedy says:

Evan's blog is exceedingly well-written and loaded with practical tips and insights. I also enjoy Evan's occasional impassioned efforts to defend trial lawyers from the constant stream of criticism they get. I don't think he's been able to change many opinions, but I admire the effort. Evan's now written a book on deposition techniques, in no small part because of his work on this blog. If you are a trial lawyer, this blog is a must-read. If you have to hire a trial lawyer, this blog is a valuable read to help you understand the process and to evaluate what your lawyer is doing.

Court halves Exxon Valdez damage award

Court halves Exxon Valdez damage award, Seattle Times, Dec. 23, 2006.

The case is In re the Exxon Valdez (Baker v. Exxon Mobil Corp.), No. 04-35182 (9th Cir. Dec. 22, 2006).

Marijuana Is Big Cash Crop

It's not directly about trial practice, but fyi... Analyst finds that pot rivals rivals apples as state's biggest cash crop, Seattle Times, Dec. 23, 2006.

Youth Courts

This morning's Seattle Times has a front-page story about a youth court in Lynnwood, where teenage volunteers service as judge, prosecutors, defense attorneys, and jury in proceedings to determine the sentences of other teens who have pleaded guilty to misdemeanors and infractions. Teen courts put youngsters at the mercy of their peers, Seattle Times, Dec. 23, 2006. One benefit: teenagers who are "tried" in these courts have a much lower recidivism rate than others.

Washington's youth courts are set up under RCW 13.40.580 - .640. They are "diversion units," not true "courts." A list of youth courts in Washington is here.

For information about youth courts nationally, see the Federal Youth Court Program. The site includes a 2002 study: Jeffrey A. Butts et al., The Impact of Teen Court on Young Offenders. According to a fact sheet, there are now over 1100 youth court programs in 49 states and the District of Columbia.

Polls: What Do Americans Think of Their Courts?

Information from recent polls by CNN and by the Annenberg Public Policy Center is in Polls: What Do Americans Think of Their Courts?, The Third Branch, Nov. 2006. The article links to the surveys.

Are federal judges too liberal, too conservative, or about right? The most common answer (41%) was "about right," with 20% saying "too conservative" and 34% saying "too liberal."

Federal Courts on TV?

Several proposals in Congress could open up federal court proceedings to television cameras. A report from the Congressional Research Service reviews the history of the issue, summarizes the proposals, and lists arguments for and against. Televising Supreme Court and Other Federal Court Proceedings: Legislation and Issues, updated Nov. 8, 2006.

Thanks: beSpacific.

Spanish Language Style Guide & Glossaries- Webcontent.gov - Guide to Managing U.S. Government Websites

Spanish Language Style Guide & Glossaries- Webcontent.gov - Guide to Managing U.S. Government Websites: "This new Spanish Style Guide is a resource for government employees, translators, and communications professionals who work with the government to improve the way we communicate with the public in Spanish. The guide contains information on grammar and style issues as well as glossaries to standardize the use of Spanish across government."

This resource might seem very tangential to trial advocacy, but consider that in the federal courts alone, there were nearly 200,000 "language-interpreting events" in Spanish last year. U.S. Courts press release, Nov. 14, 2006.

How Do You Prosecute Shell Corporations?

The Senate Committee on Homeland Security and Governmental Affairs held a hearing in November entitled Failure to Identify Company Owners Impedes Law Enforcement:

The Permanent Subcommittee on Investigations’ hearing will examine the issue of states routinely incorporating hundreds of thousands of new, non-publicly traded companies in the United States each year without obtaining the identity of the corporate owners, thereby impeding law enforcement investigations into persons misusing U.S. shell corporations for money laundering, tax evasion, terrorist financing, or other crimes. The hearing will feature the April 2006 Government Accountability Office (GAO) report prepared at the Subcommittee’s request, "Company Formations: Minimal Ownership Information Is Collected and Available."

The GAO report is here.

Sealed Settlements Study

At the request of the Civil Rules Advisory Committee, researchers at the Federal Judicial Center did an empirical study of settlements that were sealed. Now one of the researchers writes about the project: Robert Timothy Reagan, The Hunt for Sealed Settlement Agreements, 81 Chi.-Kent L. Rev. 439-62 (2006).

He reports that sealed settlements are fairly uncommon: less than 1/2% of the cases resolved in the two-year period they sampled. They are most common in patent cases and least common in property cases.

He notes that, even when the settlement is sealed, the public is not necessarily deprived of all information about the case. Often the complaint and docket sheet were not sealed -- so one could find out what the plaintiff's allegations were. Most often, the only information that was sealed was the amount of settlement.

The whole study is Robert Timothy Reagan et al., Sealed Settlement Agreements in Federal District Court (Federal Judicial Center 2004). It includes an appendix summarizing local district court rules on the topic. An earlier report summarizes federal and state rules, as of 2003: Robert Timothy Reagan et al., Sealed Settlement Agreements in Federal District Court -- May 2003 Progress Report.

Drug Use Among Prisoners

Drug Use and Dependence, State and Federal Prisoners, 2004 (Oct. 2006, revised Nov. 29, 2006) is a special report from the Bureau of Justice Statistics.

About a quarter of offenders reported using a drug at the time of their offense, and about half had used within a month of their offense. Perhaps it's not surprising that drug and property offenders were more likely to be drug users than violent offenders.

Drug dependent or abusing inmates were more likely than other inmates to
report troubled personal backgrounds, including experiences of physical or
sexual abuse, homelessness, unemployment, parental substance abuse, and parental incarceration.

p. 8. More prisoners participated in drug abuse programs in prison in 2004 than in 1997. In state prisons, it's around 40% for prisoners who reported using within a month of the offense AND for the prisoners who met the criteria in the study for drug dependence. It's a little higher in the federal system.

Thanks: beSpacific.

E-Discovery Guidelines for State Courts

Discovery of electronic documents presents -- both in quantity (there are a bazillion of them) and quality (metadeta, versions, media, software). In August the Conference of Chief Justices (affiliated with the National Center for State Courts) released Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (Richard Van Duizend, Reporter).

On the special challenges of e-discovery, consider this paragraph from the report's introduction:

One paper document originating from a corporate computer network and shared with other employees who commented on it may result in well over 1,000 copies or versions of that document in the system. A company with 100 employees sending or receiving the industry average 25 e-mail messages a day produces 625,000 e-mail messages a year, generally unorganized and full of potentially embarrassing or inappropriate comments. Document search locations not only include computer hard drives, but also network servers, backup tapes, e-mail servers; outside computers, servers, and back up tapes; laptop and home computers; and personal digital assistants or other portable devices. Electronic documents are easily damaged or altered – e.g., by simply opening the file. Computer systems automatically recycle and reuse memory space, overwrite backups, change file locations, and otherwise maintain themselves automatically—with the effect of altering or destroying computer data without any human intent, intervention, or even knowledge. And, every electronic document can look like an original.

p. v. Zowie.

Among the recommendations: Judges should encourage attorneys to become familiar with how their clients store and manage documents so that they can make informed decisions about and responses to discovery requests. Attorneys should be prepared to work out an agreement with opposing counsel about what documents to exchange and in what format. They should consider agreements covering the inadvertent transmission of privileged material.

For more on e-discovery, state and federal, see the LLRX column, E-Discovery Update.

Chihuly Settles Suit

Dale Chihuly has settled his lawsuit against a glass artist against whom he had filed a copyright infraction suit. Chihuly, rival glass artist settle dispute, Seattle Times, Dec. 19, 2006. The terms of the settlement are confidential.

See earlier post.

Prosecution for Firefighter Deaths

A criminal complaint was filed yesterday against Ellreese N. Daniels, the U.S. Forest Service crew boss who was supervising the four firefighters killed in the Thirtymile wildfire in 2001. The complaint charges him with four counts of manslaughter for gross negligence and 5 counts of giving misstatements to investigators. Thirty Mile crew boss charged in 4 fire deaths, Seattle Times, Dec. 21, 2006.

The Times includes the complaint on its website. Including a long affidavit from a special agent from the U.S. Department of Agriculture Office of the Inspector General, it is 70 pages.

(I'm not sure of the relationship between the Inspector General and the U.S. Attorney. Skimming the affidavit, I found that the agent investigated "in concert with the U.S. Attorney's Office in the Eastern District of Washington." p. 3 An assistant US attorney is quoted in the newspaper, but the agent is the who signed the complaint.)

Proseuting a Forest Service employee for deaths during a forest fire is very unusual:

Until two years ago, it had never happened before, said Dick Mangan, a retired 30-year Forest Service veteran who heads the International Association of Wildland Fire.

But after the Thirty Mile Fire, a new federal law boosted investigations of forest-fire deaths. And in 2004, federal prosecutors considered criminal charges against a Forest Service supervisor after a fire in Idaho the previous year killed two firefighters. In the end, though, the supervisor struck a deal, agreeing to quit the Forest Service and serve 18 months of federal probation in return for no formal charges being filed, according to press accounts.

The statutes cited in the complaint are 18 U.S.C. 1112 (manslaughter generally), 18 USC 1114 ("protection of officers and employees of the United States"). The law that increased investigations was Pub. L. 107-203 (codified at 7 USC 2270b-2270c), which requires USDA's Inpector General to investigate "each fatality of an officer or employee of the Forest Service that occurs due to wildfire entrapment or burnover" and report to Congress. These investigations are to be independent of Forest Service investigations.


Update (Dec. 28):The International Association International Association of Wildland Fire and the Federal Wildland Fire Service Association just issued a joint news release today, saying that the prosecution of the crew leader does not serve the public's need for fire protection. They say that it will have a chilling effect; already firefighters are saying they will not be willing to make split-second decisions in their jobs if it means that they could be prosecuted years later when hindsight indicates that their decisions had bad results.

Photo of site where firefighters were trapped from Wildland Fire Leadership Development Program.

Maleng Makes Capital Decision

King County Prosecutor Norm Maleng announced yesterday that he has decided not to seek the death penalty in the case against Naveed Haq, the man accused of the shootings at the Jewish Federation offices this summer. Execution ruled out for alleged shooter, Seattle Times, Dec. 21, 2006.

Although he sees "this crime as one of the most serious crimes that has ever occurred in this city," Maleng found that Haq's long history of mental illness was a mitigating factor. RCW 10.95 covers aggravated murder. The factors to be considered for leniency are in 10.95.070.

See earlier post about Maleng's charging decisions.

Examining the Work of State Courts

In October the National Center for State Courts released Examining the Work of State Courts, 2005: A National Perspective from the Court Statistics Project.* If you're interested in the American legal system, this is a treasure trove.

The questions "How many?", "What proportion of the total?", and "How do states compare?" are answered for many, many categories: trials, settlements and other dispositions, jury trials, bench trials, civil cases, domestic relations cases, protection orders, probate cases, criminal cases, appeals, and more!

Examining the Work of State Courts has been a statistical staple for years. The online version now offers extra features -- for instance, you can click on a logo by a chart or table to get an Excel spreadsheet with all the data.

Here are samples of the sort of charts that are available. First, a comparison of the mix of civil cases -- contract, tort, property, and other. Isn't it surprising that the states vary so much? (I circled Washington in red.) Would the people who talk about how much tort litigation swamps our courts be surprised by the high proportion of contracts cases?

p. 25.


Here's one comparing rates of clearing felonies:
p. 48.

Graphics used with permission.

*Full citation is: R. Schauffler, R. LaFountain, S. Strickland & W. Raftery
Examining the Work of State Courts, 2005: A National Perspective from the Court Statistics Project (National Center for State Courts 2006)

5 Things About Me

Andrew Flusche (the Virginia law student who writes the very helpful blog, Legal Andrew) tagged me for the "5 Things You Didn't Know about Me Meme." Since I'm not firmly ensconced in blogger culture, I had to look up what it is.

Here's what I gleaned:

• "Meme" refers to socially transmitted information, beliefs, or behavior. Wikipedia has a long entry on the topic.
• Internet memes are the jokes and videos and other stuff that circulate and circulate. Bloggers sometimes intentionally get memes going by posting questions that they hope other bloggers will pick up and answer themselves. There's even someone who keeps track of them in the Daily Meme, and he tells you a lot more about memes here.
  
• This "5 Things" meme has been going around for over a year. The deal is you list 5 things about yourself that your blog's readers are unlikely to know, and then tag 5 other people to do the same.

It's something like a chain letter (and I don't pass along those!), but this is supposed to build community, rather than ward off a curse and/or bring the sender a million bucks. I enjoyed reading Andrew's 5 things and I like community, so I'll give it a try.

1. My partner and I just adopted a dog from Pointers from Oz.
2. I play alto sax in the Ballard Sedentary Sousa Band. I wish I were a better musician -- but I don't wish it hard enough to make time to practice regularly, so I muddle through.
3. I volunteer for the Youth Tutoring Program and love it.
4. I enjoy rowing (Center for Wooden Boats) and kayaking (Moss Bay) on Lake Union.
5. I read widely. I just finished Julie Powell, Julie and Julia: My Year of Cooking Dangerously (thanks, Jocelyn) and have bookmarks somewhere in Bill Bryson, Made in America: An Informal History of the English Language in the United States, Charles J. Ogletree, Jr., All Deliberate Speed: Reflections on the First Half-Century of Brown v. Board of Education, Louis Menard, The Metaphysical Club: A Story of Ideas in America (thanks, Kate -- I'll finish this and return it to you one day!), Elizabeth Marshall Thomas, The Tribe of the Tiger, Norman E. Rosenthal, The Winter Blues: Everything You Need to Know to Beat Seasonal Affective Disorder, Ross E. Davies, ed., The Green Bag Almanac & Reader 2006, and Jonathan Raban, Hunting Mister Heartbreak: A Discovery of America. I'm a couple of issues behind on The American Scholar, my favorite subscription.

I'm tagging five other bloggers, in case they're willing to play along: Diane Murley (of Law Dawg Blawg), and John Cannan, Rick Georges, David Giacalone, and Orijit Ghoshal (all of shlep: The Self-Help Law ExPress) (I'm on the shlep team, too, but we're scattered around the country and don't know each other).

Therapy Dogs for Prosector's Office

Prosecutor Ellen O'Neill-Stephens writes about the therapy dogs used by the King County Prosecutor's Office, who are especially helpful with child witnesses. Courthouse Canines Reach Out to Those in Need, Bar Bull., Nov. 2006.

The first story O'Neill-Stephens relates is of a 5-year-old boy who, along with his mother, was beaten and doused with gasoline by her boyfriend. He wasn't able to talk about it with therapists or his mother until Ellie the dog snuggled with him.

The program began with a dog named Jeeter, who usually works with O'Neill-Stephens's son but goes to work with her on some days. It turned out that Jeeter was great at helping traumatized children stay calm when being interviewed. Prosecutors saw how helpful the dog was and successfully applied to Canine Companions for Independence for another dog -- and that's Ellie, who works full-time for the office.

Dec. 22 update: A reader sent me Children's Victim Advocates Have Four Legs, Fur, Gainesville Sun, Aug. 26, 2006. Four Legged Advocates (Florida)(FLA FLA) was founded by a sexual assault counselor, recalling the support she had received from her own dog after she was assaulted herself. Volunteers with this nonprofit group work with victims in a variety of settings. It sounds like a great program. Thanks for the tip, reader!

By the way, the Seattle Times featured the King County dogs in a story last year: Dogs Lend Comfort to Kids in Court, Seattle Times, May 14, 2005.

Criminal Law in Song

In last month's Bar Bulletin, UW faculty member
Sarah Kaltsounis offered a light review of criminal law -- from possession of controlled substances to escaping from custody -- by quoting lyrics from popular music and relating them to Washington law. The School of Rock: Learn Criminal Law by Listening to the Radio.

Judicial Campaign Legislation

Many people raised concerns about campaign funding during the last elections of judges. Legislation may be introduced in the next legislative session (beginning in January). See a survey about the issues: KCBA Board Wants Your Views on Upcoming Judicial Campaign Reform Legislation,

Couple Charged with Stealing from Elderly Woman

Armed with power of attorney, a couple allegedly stole over $300,000 from an elderly woman who suffers from dementia. The King County Prosecutor's Office is bringing charges. Kent couple charged with theft from elderly woman, Seattle PI, Dec. 12, 2006.

Local U.S. Attorney Resigns

John McKay, the United States Attorney for the Western District of Washington, announced his resignation yesterday, effective Jan. 26. U.S. Attorney Who Led Fight Against Terrorism Steps Down, Seattle PI, Dec. 15, 2006. McKay was appointed to the post in September 2001, just after 9/11, and worked to improve cooperation among federal investigating agencies. One of his most prominent prosecutions was of Ahmed Ressam for charges in connection with a plot to bomb Los Angeles International Airport. McKay will return to private practice, but did not comment on specific plans for the short term -- other than skiing.

Preston Gates Merges

Prominent Seattle law firm Preston Gates & Ellis has decided to merge with an even larger firm, Kirkpatrick & Lockhart Nicholson Graham, effective Jan. 1, 2007. Preston Gates & Ellis OKs merger: New firm will be one of world's largest, Seattle PI, Dec. 15, 2006. The new firm's formal name will be Kirkpatrick & Lockhart Preston Gates Ellis LLP, but day to day it will go by K&L Gates. (Yes, the Gates is the William H. Gates our law school building is named for, as well as the Gates Public Service Scholarships.)

IM Codes for Law

Regular users of instant messaging, text messaging, and email often abbreviate phrases -- "CU" for "see you," "LOL" for "laughing out loud," and so on. Now an appellate lawyer proposes a series of similar abbreviations for briefs: e.g., "OFG" for "open the floodgates" and "AFB" for "at first blush." Instead of "oral argument requested," tomorrow's attorney might simply type "F2F" (wanting to see the judges face to face). Roger W. Hughes, Legalese in the Age of IM (Instant Messaging), Appellate Advocate (State Bar of Texas Appellate Section Report), Summer 2006, at 14.

Hughes goes on to suggest: "Possibly the IM brief will induce tech-savvy justices to issue the 'IM opinion,' one short enough to be sent direct to cell phones." How would you like an opinion reduced to "Aff'd NNuH" (affirmed, nothing new here)?

Maybe this is the wave of the future. But in the short term -- for instance, on your finals next week, UW students -- it might be wise to fill in your thoughts just a little more. (Good luck on those exams, by the way!)

Thanks: Law Dawg Blawg.

NWIRP Leader Honored

Magdaleno Rose-Avila, the executive director of the Northwest Immigrant Rights Project, was given the City of Seattle's Distinguished Citizen Award for Human Rights today. See the profile in the Seattle Times: Advocate for immigrants will be honored with city award, Dec. 7, 2006. Congratulations, Leno!

The Human Rights Day celebration also honored the Seattle Trans Jail Policy Group, which worked with the Department of Adult and Juvenile Detention to develop a new policy for the King County Jail to use in dealing with incarcerated transgender, gender variant, and intersex inmates. The jail began phasing in the policy in August.

Slain Officer Was Former Prosecutor

A King County Sheriff's Deputy who was shot and killed on the job early Saturday morning began his career as a prosecutor. Slain deputy had become White Center's "Superman", Seattle Times, Dec. 3, 2006. A graduate of Willamette law school, Steve Cox prosecuted "high-profile murder and gang cases in Pasco" (Franklin County) in the 1990s. Franklin County Prosecutor Steve Lowe recalled that Cox talked with him about his misgivings about the legal system:

"It's not a perfect system, and sometimes we lose cases because of technicalities. That really, really bothered him," Lowe said. "He made it clear that his goal in life was to go back and be a patrol officer. He was frustrated with what is frankly an imperfect system, and he wanted to always help people and make the community safer. He felt he could do that better back in law enforcement."

He worked briefly for the King County Prosecutor's Office before joining the Sheriff's Office in 1997.

Times Probes Guardianship System

As part of its Your courts, their secrets series, the Seattle Times is now taking a hard look at our state's guardianship system. Yesterday the feature story was about the mismanagement of an elderly woman's affairs by a professional guardian in Spokane, and the frustrations her son had in trying to get access to her court file, which the guardian had had sealed. Maureen O'Hagan, Cheryl Phillips, and Justin Mayo, A son struggles to reveal how lawyer was treating his mother, Seattle Times, Dec. 3, 2006. The Times analyzed the orders sealing files and found that, contrary to the rules, 97% failed to cite compelling circumstances for sealing and 99% failed to weigh the public interest. Thirty-nine percent gave no explanation at all for sealing. Meanwhile, guardians sometimes overcharge and underperform.

A graphic presentation explains How guardianship works -- or doesn't -- and what to watch for.

Today's front-page story looks at the guardianship of a woman who suffered brain damage in a car accident. The lawyer advising the family (the woman's daughter) disclosed that he also represented the guardianship company. At first that seemed to the daughter like an endorsement, but later, when the family was challenging the guardianship company, it looked more like a conflict of interest. Meanwhile, the guardian ad litem who was appointed to review the guardianship had ALSO represented the guardianship company. Cheryl Phillips, Maureen O'Hagan and Justin Mayo, Secrecy hides cozy ties in guardianship cases, Seattle Times, Dec. 4, 2006. After a long struggle -- and over $100,000 in legal fees for the ward -- the ward's sister is now the guardian.

Judge Reprimanded for Telling Defendants of Rights Only in Writing

The Commission on Judicial Conduct has reprimanded municipal judge James Helbling for informing unrepresented criminal defendants of their rights in a written form rather than explaining the rights orally or confirming orally that the defendants understood the form. Bonney Lake judge rebuked, News Tribune, Dec. 4, 2006.

The Stipulation, Agreement and Order of Reprimand is here.

Thanks: Lisa Kremer.

Greenhouse Gas Case in S. Ct.

The Supreme Court heard oral argument yesterday in Massachusetts v. EPA (05-1120), a case brought by states and environmental groups trying to force the federal government to regulate emissions of greenhouse gases. Supreme Court divided on greenhouse gases?, Seattle Times, Nov. 30, 2006.

Massachusetts gets top billing, but there are lots of states involved:
Petitioners include:

• States: MA, CA, CT, IL, ME, NJ, NM, NY, OR, RI, VT, WA.
• Other governments: DC, American
  Samoa, New York City, Baltimore.
• Environmental groups: Ctr. for Biological Diversity, Ctr. for Food Safety, Conservation Law Found., Env't'l Advocates, Environmental Defense, Friends of the Earth, Greenpeace, Int'l Ctr. for Technology
  Assessment, Nat'l Env't'l Trust, Natural Resources Defense Council, Sierra Club, Union of Concerned Scientists, and U.S. Public Interest Research Group.

The respondents are a big group, too:

• EPA
• States: MI, AK, ID, KS, NE, ND, OH, SD, TX, UT (intervenors below).
• Industry and trade groups: Alliance of Automobile Manufacturers, Nat'l Automobile Dealers Ass'n, Engine Mfrs Ass'n, Truck Mfrs Ass'n, CO2 Litigation Group, Utility Air Regulatory Group.

Basic map from Ben's Guide to U.S. Government for Kids. Wanting to avoid the red state/blue state cliche (and rejecting green for environmentalists and gray for polluters), I chose pink for petitioners. Yellow made a nice contrast, so that's the color for respondents. See a pattern?

The merits briefs are available on the web. (They're linked from the Supreme Court's website but maintained by the ABA.) The Massachusetts brief lists counsel for all the petitioners, including, for Washington, Attorney General Rob McKenna, Asst AG Leslie R. Seffern, and Deputy Solicitor General Jay D. Geck.

There's not a "trial" angle to this, since the case began in the Court of Appeals (D.C. Circuit). But it's an interesting case in the news, and at least we have a Washington connection. (Trial Ad Notes doesn't have to be rigid about the scope of its coverage, does it?) Here's the press release from when Washington (under then-Attorney General Gregoire) joined the case: State Challenges EPA Decision on Global Warming, Oct. 23, 2003.

Thanks: Nicole Tadano.

Trial Lawyer Going Downhill

Here's an item in honor of Seattle's snowfall last night and slick roads and sidewalks today...

Evan Schaeffer has posted A Video-Podcast Made While Skiing, Evan Schaeffer's Legal Underground, Nov. 28, 2006.

As Robert Ambrogi observed, "No one is likely to argue with Schaeffer's claim that he is the first-ever lawyer and poor skier to take a blue slope while recording a discussion of the Federal Rules of Civil Procedure." Making Legal History, One Schuss at a Time, Nov. 28, 2006.

The video doesn't actually say much about the Federal Rules of Civil Procedure, but it's amusing that Evan thought to do this at all. His blogs, Legal Underground and the Illinois Trial Practice Weblog, consistently do have good, solid information and helpful tips.

Now let's hope I can get home as gracefully as Evan got down that ski slope. At least no one will be filming it if I take a pratfall on the ice.

Davis Wright Merges

Davis Wright Tremaine, one of Seattle's largest firms, will merge with a smaller DC firm on Jan. 1. The DC firm, Cole, Raywid & Braverman, represents cable and telecommunications companies. Davis Wright to Merge With 35-Attorney Firm, Legal Times, Nov. 28, 2006 (law.com).

The firms' press release (Nov. 28) is on each firm's website, here (CR&B) and here (DWT).

Federal Rules of Civil Procedure: Easier to Read?

Everybody handling a lawsuit needs to work within the court rules -- for instance, the Federal Rules of Civil Procedure. Alas, court rules are sometimes written in a rather dense style. But there's hope! For over a decade a group within the Civil Rules Advisory Committee has been working on a revision of the Federal Rules of Civil Procedure to make them clearer and easier to understand.

A comprehensive revision of the rules was approved by the Judicial Conference of the United States in September. Now the proposal goes to the United States Supreme Court. If the justices approve, then the rules will be slated to take effect Dec. 1, 2007. (Congress gets to review proposed rule changes and can stop them from taking effect. Usually, Congress does nothing and the rules that the Court approves take effect.)

Here's a taste of the change:

(Current) Rule 6. Time

(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes New Year's Day, Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and any other day appointed as a holiday by the President or the Congress of the United States, or by the state in which the district court is held.

(Proposed) Rule 6. Computing and Extending Time; Time for Motion Papers

(a) Computing Time. The following rules apply in computing any time period specified in these rules or in any local rule, court order, or statute:

(1) Day of the Event Excluded. Exclude the day of the act, event, or default that begins the period.

(2) Exclusions from Brief Periods. Exclude intermediate Saturdays, Sundays, and legal holidays when the period is less than 11 days.

(3) Last Day. Include the last day of the period unless it is a Saturday, Sunday, legal holiday, or -- if the act to be done is filing a paper in court -- a day on which weather or other conditions make the clerk's office inaccessible. When the last day is excluded, the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day when the clerk's office is accessible.

(4) "Legal Holiday" Defined. As used in these rules, "legal holiday" means:

(A) the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Thanksgiving Day, or Christmas Day; and

(B) any other day declared a holiday by the President, Congress, or the state where the district court is located.

The answer's the same, but I think the new rule is significantly easier to work one's way through. This is good news for everyone who has to read, absorb, and abide by court rules. And it should make first-year Civ Pro just a little easier, too!

All of the rules -- along with a cover memo, the advisory committee's official comments, and more -- are here. My example, Rule 6, is from page 25 of the pdf.

(This is adapted from a post at shlep: the Self-Help Law ExPress. I don't think I really need to give credit, since it was my post, but it doesn't hurt to remind readers that shlep is out there.)

Moot Court Stars

Congratulations to the UW students who won the Regional Round of the National Moot Court Competition at the University of Idaho, Nov. 9-11. UW School of Law Sweeps Regional Round of the National Moot Court Competition, UW press release, Nov. 11, 2006. (Obviously I missed the press release when it was first posted.)

The victorious team included Heather Bowman (3L), Dustin Buehler (3L), Adam Franklin (3L), Anna Jackson (2L), Candice Tewell (2L), and Aaron Thomson (3L). Buehler, Tewell, and Thomson will represent the UW at the 57th Annual National Moot Court Competition final rounds in New York in January 2007.

The team is coached by UW alumni Shawn Griggs ('00) (Bauer Moynihan Johnson) and Patrick Hinds ('03) (King Prosecuting Attorney's Office).

Wishbone Lawsuit

Local company Lucky Break Wishbone makes plastic wishbones. Think of all the squabbles with siblings could be avoided if everyone got a wishbone! Now even vegetarians can make wishes!In August 2005, Sears (allegedly) ordered over a million wishbones from the company -- but then decided to have them made offshore. Now the little manufacturer is suing Sears and its advertising company (Young & Rubicam) for breach of contract and copyright infringement. Judge Thomas Zilly (W.D. Wash.) has ordered the two sides to spend 60 days in mediation. West Seattle company is fighting over the wishbone, Seattle Times, Nov. 22, 2006.

Remember Contracts class? When is a contract formed? Does an email exchange satisfy the Statute of Frauds?

Does copying the shape of a bone have enough originality for a copyright?

Attorneys quoted in the article are Mark P. Walters (Christenson O'Connor Johnson Kindness, Seattle) for Lucky Break and Marc J. Rachman (Davis & Gilbert, New York), for the defendants.

To Split or Not to Split

Engage, a journal from the Federalist Society, has a point-counterpoint about the merits of splitting the Ninth Circuit:

• Diarmuid F. O'Scannlain, Ten Reasons Why the Ninth Circuit Should Be Split, Engage, Oct. 2005, at 58-64 (the whole issue is here in pdf).
  • A speech in which Judge O'Scannlain argued for the split (March 16, 2006) is on the Harvard Federalist Society's website.
• A Court United: A Statement of a Number of Ninth Circuit Judges, Engage, March 2006, at 63-66 (the whole issue is here in pdf; the article itself is on Alex Kozinski's website).
  • The judges signing on were: Chief Judge Mary M. Schroeder and Judges James R. Browning, Alfred T. Goodwin, J. Clifford Wallace, Procter Hug, Jr., Otto R. Skopil, Betty B. Fletcher, Jerome Farris, Harry Pregerson, Warren J. Ferguson, Dorothy W. Nelson, William C. Canby, Jr., Robert Boochever, Stephen Reinhardt, Melvin Brunetti, Alex Kozinski, John T. Noonan, Jr., David R. Thompson, Michael D. Hawkins, A. Wallace Tashima, Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Kim M. Wardlaw, William A. Fletcher, Raymond C. Fisher, Richard A. Paez, Marsha S. Berzon, Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M. Callahan & Carlos T. Bea, all of the Ninth Circuit Court of Appeals.
• Judge O'Scannlain will respond in the next issue of Engage. (It was scheduled to be published "in early fall" but it is not yet posted.)

Wikipedia has a good entry about the Ninth Circuit, including the composition of the court, controversy about its rulings, and the history and current state of splitting proposals.

Civilian Oversight of King County Sheriff?

Following a commission's recommendation, King County Executive Ron Sims proposed (and the King County Council approved) a civilian oversight office over discipline in the Sheriff's Office. The Police Officers Guild filed an unfair labor practice charge with the Public Employment Relations Commission. Now the guild is withdrawing its charge and has agreed to negotiate over the issue with Sims. Executive to open police union negotiations for civilian oversight- King County, News Release, Oct. 31, 2006.

2006 Federal Sentencing Guideline Manual

The 2006 Federal Sentencing Guideline Manual is now available online in several formats from the United States Sentencing Commission. You can use it in HTML, download individual chapters or the whole thing in PDF, or even download a special electronic version designed just for Palms and Pocket PCs.

Another item: The Sentencing Commission held a hearing on cocaine and sentencing policy last month.

Thanks: be Spacific.

Looking at Metadata

A word processed document can include information such as the dates it was created and modified, changes made, and comments attached to it. So if opposing counsel sends you a document as an email attachment, is it OK to take a look? You'd love to find a comment like "weak argument - hope the other side doesn't notice" wouldn't you?

Some ethics experts say it's not right to peek, but now there's an ABA ethics opinion that says "Go ahead!" Lawyers Receiving Electronic Documents are Free to Examine 'Hidden' Metadata: ABA Ethics Opinion, ABA News Release, Nov. 9, 2006:

The ABA committee noted metadata is ubiquitous in electronic documents, and includes such information as the last date and time that a document was saved and by whom, data on when it was accessed, the name of the owner of the computer that created the document and the date and time it was created, and a record of any changes made to the document or comments written into it.

“Other types of metadata may or may not be as well known and easily understandable ... Moreover, more thorough or extraordinary investigative measures sometimes might permit the retrieval of embedded information that the provider … either did not know existed, or thought was deleted,” said the opinion. And while the opinion said most metadata “probably is of no import,” it added that the metadata can sometimes reveal such critical information as “who knew what when,” or negotiating strategy and positions.

Thanks: beSpacific.

Settlement Over Geoduck Poaching

Washington State has settled with a Canadian company that allegedly conspired with a convicted poacher to steal more than 65 tons of geoduck from South Puget Sound. AG McKenna Announces Criminal Profiteering Settlement with Clear Bay Fisheries, News Release, Nov. 1, 2006.

Under the settlement agreement, Clear Bay Fisheries agreed to pay $112,500 in restitution to the State and release its liens in a vessel that had been used in the poaching operation. Clear Bay Fisheries and its officers also agreed to be permanently banned from engaging in the shellfish business in Washington. Clear Bay denies all liability and made no admissions of liability in settling with the state.

The market value of the stolen clams was about $1.5 million. (That's a lot of clams!) The man who supplied the geoduck is serving a 14-year sentence for "theft of geoduck, trafficking in poached shellfish and other crimes."

Photo: Washington Dept. of Fish and Wildlife. Of course I'm not suggesting that the young man in the picture is a poacher: I just wanted people unfamiliar with the world's largest burrowing clam (and Evergreen's mascot) to get an idea of scale.

Lawsuit Settlement Scam

The Washington Attorney General's Office warns consumers of a scam involving a lawsuit settlement. The victim gets a letter purporting to be from a law firm. The letter comes with a check (hard to resist, right?) for the recipient's share in a class action settlement. The bounces after it's deposited, but in the meantime, the recipient has sent the "law firm" personal information that could facilitate identity theft and may have sent money too. Consumer Alert: Beware of Cons that Claim You’ve Received Payment for a Lawsuit Settlement, News Release, Nov. 16, 2006.

Con games generally rely on people's dreams of getting rich, as well as their lack of skepticism. (Not everyone lives by the maxim, "If it seems too good to be true, it probably is.") This scam is interesting as a comment on public perceptions of the legal system. The victims believe that there well could be a lawsuit against a company they don't remember doing business with that would have such a big payout that they'd get a good-sized check.

HGN Admissible without Frye Hearing

In a DUI case in King County District Court, the State sought a pretrial hearing on the admissibility of the Horizontal Gaze Nystagmus (HGN) test to show impairment by alcohol. (The HGN test is what the patrol officer is doing when he or she asks the driver to follow a pen light side to side.) Since the issue was of county-wide significance, it was assigned to a three-judge panel. The panel held:

[T]he State may move to introduce HGN tests without the need for a Frye evidentiary hearing. The testimony of a state toxicologist regarding the results of an HGN test is admissible if the witness and the witness's testimony meet the requirements of ER 702 and ER 703.

Order on Pretrial Motion Regarding the Admissibility of HGN Evidence to Establish Impairment, Washington v. Williams, No. C0518820 (April 7, 2006), at 9. Judges David A. Steiner and Douglas J. Smith were in the majority; Judge Mark Elde dissented.

This development isn't particularly recent -- the decision was six months ago -- but I think it's worth a post.

1. I wasn't aware of the district court procedure that will assign an issue to a three-judge panel. See King County LCrRLJ 8.2(2). That sounds like a good way to improve consistency. (Of course, if there's a clear statement from the Court of Appeals or the Supreme Court, all the better. There is nothing more recent on HGN than this opinion in WA-CS on Westlaw.)

2. I also wasn't aware that some district court opinions were available (e.g., King County District Court decisions). Many relate to traffic infraction and DUI cases.

3. More on HGN:

• For a defense perspective, see Mimi Coffey, DWI -- Modern Day Salem Witch Hunts, Champion (National Ass'n of Criminal Defense Lawyers), Nov. 2004, at 51.
• For a variety of links, see Types of Field Sobriety Tests, a page from DUI: A National Online Resource Library for the Judiciary on Impaired Driving. (The site "was developed by the National Association of State Judicial Educators (NASJE), through the New Mexico Judicial Education Center, under a contract from the National Highway Traffic Safety Administration (NHTSA).")
• The Washington State Patrol's Forensic Laboratory Services has a lot of technical information -- for instance, DWI Detection and Standardized Field Sobriety Testing Student Manual 2004 Edition (from the National Highway Transportation Safety Administration) (HGN test is described in detail at VIII-3 through VIII-8).

Photo of officer and Explorer Scout from Wise County Sheriff's Dept., Decatur, TX. On Tuesday, I sent an email message asking for permission to use this photo, but haven't heard back yet. The use seems innocuous to me, so I'll go ahead and use it; I'll gladly take it down if there's a problem.

Kozinski Chides Tacoma

Affirming a jury verdict against Tacoma in a police misconduct case, Judge Alex Kozinski suggested the case was so strong that the city's appeal was frivolous. Frunz v. City of Tacoma, No. 05-35302 (9th Cir. Nov. 13, 2006).

A man reported to the police that his neighbor had asked him to keep an eye on his house while he was out of town and that now the neighbor's ex-wife appeared to be inside. Two officers stopped by the house and saw no signs of a break-in. The man called again to say that she was still inside and had opened the door to guests. Forty minutes later, at least three officers broke down the back door and handcuffed the woman and her guests on the floor. The two guests were released after the officers checked their IDs and found they had no outstanding warrants. The woman was kept cuffed for about an hour, until the officers reached her divorce lawyer who confirmed that she had received the house in the divorce.

A jury found against the defendant officers on all counts, awarding $27,000 in compensatory damages and $111,000 in punitive damages. On appeal, the officers argued that the verdict was not supported by the evidence and that they were entitled to qualified immunity. Judge Kozinski was not persuaded in the least:

Only the most misguided optimism would cause defendants, and those who are paying for their defense, to appeal the verdict under these circumstances. Surely, the citizens of Tacoma would not want to be treated in their own homes the way the jury found [the] officers . . . treated Frunz and her guests. A prompt payment of the verdict, accompanied by a letter of apology from the city fathers and mothers, might have been a more appropriate response to the jury’s collective wisdom.10

10 Defendants and their counsel shall show cause within 14 days why they should not be assessed double costs and attorney’s fees for filing a frivolous appeal. Fed. R. App. P. 38.

See blog posts: Volokh Conspiracy (with over 100 comments), Nov. 14, 2006; Legal Blog Watch, Nov. 15, 2006.

Update (Nov. 27): News Tribune columnist Peter Callaghan printed excerpts from the oral argument, during which Judge Kozinski questioned Tacoma's attorney pointedly. Kozinski thought that the jury award was very modest:

“You had a jury and to me it sounded like the jury gave your clients a hug and kiss for what they did. Boy was this a parsimonious jury. You should have thanked them.”

Bread and butter get expensive in 9th Circuit, News Tribune, Nov. 21, 2006. The column links to audio of the oral argument.

Thanks: Lisa Kremer.

9th Cir. Reviews Ressam Sentence

Ahmed Ressam was convicted of nine felonies, including conspiracy to commit an act of international terrorism. After he cooperated with the government by giving information about others involved, Judge Coughenour (W.D. Wash.) sentenced him to 22 years in prison. Now the prosecution is challenging the sentence, saying it was too lenient. Oral arguments were Monday. Justice Department argues for tougher sentence for Ressam, Seattle Times, Nov. 14, 2006. See also Lawyers to argue Ressam sentence before appeals court, Seattle Times, Nov. 12, 2006.

Ressam is represented by Tom Hillier, Federal Public Defender (and Trial Ad instructor).

Drunk Driver Extradited from Ireland

Five years after the fatal accident, Fred Russell is being extradited from Ireland to stand trial for vehicular homicide and vehicular assault (three counts of each) in Whitman County. Fugitive en route home after 5 years in Ireland, Seattle Times, Nov. 10, 2006.

In June 2001, Russell was driving to a party in Moscow, ID, after leaving a bar in Pullman. His SUV crossed the center line and hit a car with 7 WSU students who were headed back to Pullman after going to a movie in Moscow. Three of the students were killed and three were injured. In August 2001, he pleaded not guilty to all counts. Before a pretrial hearing, he had a friend drive him to Canada, and eventually landed in Ireland.

He was arrested in Dublin, where he was living under an assumed name, after a tip from someone who recognized him from the U.S. Marshals Most Wanted website. Irish Police Arrest U.S. Marshals' 15 MOST WANTED Fugitive Sought for Vehicular Homicide in Washington State (press release from U.S. Marshals Service), Oct. 24, 2005.

Ireland often denies extradition to the U.S., but in this case, the High Court (which is below the Supreme Court in Ireland) granted it. Attorney General v. Russell, [2006] IEHC 164 (23 May 2006).

The three arguments raised by Russell and rejected by the court were: (1) Despite prosecutor's assurances, he might be prosecuted for bail jumping or interstate flight, which are not extraditable. (2) He feared for his life, since some friends of the victims had threatened him. (3) He might be subjected to "inhuman and degrading treatment" in a Washington prison. After the decision, he was also turned down for political asylum.

Russell's new attorney is Francisco Duarte (a Trial Ad instructor). He says that he will seek a change of venue, since public opinion is very heated in Whitman County. (This remark was in the version of the Seattle Times article on LexisNexis but not in the one on the website.)

Graphic from U.S. Marshals wanted poster.

National Adoption Day

Courts around Washington are celebrating National Adoption Day this week. Washington Courts press release, Nov. 14, 2006.

The King County event will be Friday, Nov. 17, 11-12, Presiding Courtroom E942.

The statewide celebration is sponsored by the Washington Supreme Court's Commission on Children in Foster Care, co-chaired by Justice Bobbe Bridge and DSHS Assistant Secretary Cheryl Stephani.

Ecosabotage Guilty Pleas

Four people pleaded guilty to arson charges last week in federal court in Eugene, OR. 4 more plead guilty in ecosabotage cases: trial may be avoided, Nov. 10, 2006. One remaining defendant has not entered a plea.

According to the Seattle Times article:

The guilty pleas reflect the strength of the government's evidence, which was bolstered by extensive informants' testimony. The pleas also reflect the harsh consequences should defendants risk a trial and end up being convicted.

Sentenced might have been 30 years or life, but with the pleas, the government is recommending 8 years for three defendants and 5 years for the fourth.

Trial Ad instructor Amanda Lee represented defendant Daniel McGowan:

"I hope you will see that my actions were not those of a terrorist, but of a concerned young person who was deeply troubled by the destruction of Oregon's beautiful old-growth forests and the dangers of genetically modified trees," McGowan, 32, of New York City, said in a tearful statement in court. "... I realized that burning things down did not fit with my visions or belief about how to create a better world. So I stopped committing these crimes."

Defense attorneys had asked that the court order the prosecution to say whether NSA warrantless wiretaps had been used. The prosecutors said surveillance was not a factor but Lee "said the timing of the plea agreement led her to believe it was."

Rule Proposed for Tracking Capital Filings

The Superior Court Special Proceedings Rules - Criminal apply whenever the death penalty may be (or has been) imposed. For instance, instead of one appointed counsel, the defendant must have two, each with at least five years of experience. SPRC 2.

To improve the tracking of which proceedings are covered, the Supreme Court is proposing that prosecutors be required to notify the Washington State Office of Public Defense whenever they file a notice of special sentencing in aggravated murder cases (RCW 10.95.040) and then when they decide whether or not they will seek the death penalty or the time for filing expires. Proposed New Rule SPRC 8. Comments on the proposed rule are due by April 30.

Summary Judgment in Courts of Limited Jurisdiction

Proposed Changes to CRLJ 56 would affect the timing of summary judgment motions and responses in the courts of limited jurisdiction. So that people without lawyers aren't blindsided and hit by default judgments, a party filing a motion for summary judgment would be required to send a copy of the rule to any unrepresented parties. Comments are due by April 30 (there's one posted so far).

You Say “Aggressive” - I Say “Self-Confident”

Words are the tools of our trade; effective attorneys know how to verbally paint the picture they want others to see. Advocacy Words: A Thesaurus, by William Drennan, is a little book (from the ABA's GP/Solo Section) which will help you find just the right word. It has two separate word lists, “Favorable-Critical” and “Critical-Favorable”, which suggest alternative words that “spin” your original word into your side of the argument. So why let the prosecution call your client “cowardly” when you can say she’s “prudent”? Where can you find this gem? K50 .D74 2005 at Reference Area.

Reprinted with permission from Stacy Etheredge's post at Cocky Law Blawg, the Coleman Karesh Law Library's blog. (The University of South Carolina's mascot is the Gamecock.)

Thanks: Melissa Fung.

SD Judicial Accountability Measure Defeated

Amendment E, a measure that would have created a private cause of action against judges for their decisions, appears to have failed in South Dakota, 89% to 11% according to early returns. Judicial accountability amendment crushed, Rapid City Journal, Nov. 8, 2006. Here is the state attorney general's summary from the 2006 Ballot Questions booklet (p. 4):

Citizens serving on juries, school boards, city councils, county commissions, or in similar capacities, and prosecutors and judges, are all required to make judicial decisions. Their decisions may be reversed on appeal, or they may be removed from office for misconduct or by election. However, they cannot be made to pay money damages for making such decisions. This allows them to do their job without fear of threat or reprisal from either side.

The proposed amendment to the State Constitution would allow thirteen special grand jurors to expose these decision makers to fines and jail, and strip them of public insurance coverage and up to one-half of their retirement benefits, for making decisions which break rules defined by the special grand jurors. Special grand jurors are drawn from those who submit their names and registered voters.

The proposed amendment is retroactive. The special grand jurors may penalize any decision-maker still alive for decisions made many years ago.

The measure was backed by J.A.I.L. 4 Judges (Judicial Accountability Initiative Law), whose founder, Ron Branson, drafted a similar measure for California.

Defending the Green River Killer

Seattle attorney Mark Prothero, one of Gary Ridgway's attorney's has written (with Carlton Smith) Defending Gary: Unraveling the Mind of the Green River Killer.

The publisher's information about the book is here.

See the review by Gene Barton in the September 2006 Bar Bulletin. Here's a taste:

Prothero, who along with the other members of the defense team and Norm Maleng's prosecution team, was one of KCBA's Attorneys of the Year for 2003, saves his most biting - and delightful - criticisms for the FBI and its serial killer "science." The mousy, often tearful, unassuming man, with the big glasses and the doughy face, befuddled and confounded an FBI profiler sent to interview him because he could not be made to fit the mold. The serial killer profile "is what it is," the FBI tells us, and cannot, will not be circumscribed by the protestations of a killer who, for example, insists that he did not collect "trophies" from his victims. Ridgway, who by all accounts actually told the truth about this, took jewelry from his victims, but often left it scattered around his workplace to be found by female employees. They often wore it - rather than turning it in - much to Ridgway's delight.

The one true insight comes very early on and that is into Prothero's motivation, not Ridgway's. In my days as a reporter on the crime and courthouse beat, I once asked a public defender how he could defend people who he knew were guilty of the crimes with which they were charged. His response was simple, yet profound: "Even the guilty have constitutional rights." Prothero follows the same credo and it is an admirable one.

The book is available in the law library (HV6533.W2 P76 2006 at Good Reads) and through Summit.

Prothero's website has two domain names, by the way: www.markprothero.com and www.washingtoncriminaldefenselawyer.com.

Filed in: books, Prothero, Ridgway, Barton, Smith, KCBA, FBI, criminal-defense, serial-killers

Holly Hill Profile

Curious about the career of Trial Ad instructor Hollis (Holly) Hill? See Patty Rose, Profile/Holly Hill Fighting Inequality Blazes Trail to the Top, Bar Bull., Sept. 2006. Hill's Trial Ad profile is here.

Filed in: Hill, UW, practice-of-law

King County Judges' Reversal Rates

Statewide, 69% of the cases appealed to the Washington Court of Appeals in 2003 were affirmed. Is that rate the same here in King County? Is there any variation among the judges? Are some superior court judges reversed more often than others?

Frederick P. Corbit, a shareholder at Heller Ehrman, studied all the 2005 Washington Court of Appeals cases reviewing King County cases. Study Reveals Judges' Reversal Rates, Bar Bull, Oct. 2006. (Note: as soon as the November issue is loaded, the URL will change to this.) The affirmance rate was similar to the statewide rate in the earlier study: 67% affirmed. Of the 18 judges who had 10 or more cases appealed, not one was affirmed all the time -- but two were affirmed at least 90% of the time and four were affirmed on all issues in 50% or fewer cases.

Did those four judges just have a bad year? Were their low success rates just an aberration, attributable to the small sample size? Corbit took the four judges with the lowest affirmance rates and looked at all their appeals. One's rate went up from 30% to 62% -- a tremendous change, but still below average. Another stayed low (moving only from 50% to 51%). But the other two judges who had low affirmance rates in 2005 actually had above average rates when the sample was increased -- 72% and 88%.

Corbit also looked at how the judges were rated in the 2003 KCBA Judicial Evaluation Survey. Judges who were most often affirmed tended to get higher ratings, and judges who were most often reversed tended to get lower ratings.

Corbit concludes:

the sample of cases reviewed was not large enough by itself to be a useful tool in fairly evaluating King County Superior Court judges, but it shows enough disparity in the reversal rates between the highest-regarded trial judges and other judges to warrant a more exhaustive analysis of the reversal rates. The correlation observed between reversal rates and judicial evaluations suggests that reversal rates could be an appropriate factor to consider when evaluating Superior Court judges.

Tables with detailed data are here.

Filed in: judges, appeals, King-County, empirical-studies, Corbit

Family Law Sample Interrogatories

Family Law Sample Interrogatories from the King County Bar Assocation are now available for download.

Filed in: interrogatories, family-law, KCBA

Return of the Free Coffee*

It's the return of the free coffee* offer!

I will buy coffee* for the first ten UW law students who contact me and mention Trial Ad Notes. You can bring a friend (if you tell the friend about the blog) and I'll buy him or her coffee* too.

Where? The Supreme Cup or the University Book Store Cafe.


Students who had coffee* with me last year are still eligible for this offer.


* If you don't drink coffee, then I'll buy you tea, soda, juice, or a cookie.

Update: As of Nov. 14, 5 students have contacted me. There's still opportunity to get your free coffee*!

Filed in: coffee, notes-about-the-blog, UW