Law Cartoons

Cartoon posted with permission.

Charles Pugsley Fincher, a lawyer in Texas, has a great collection of cartoons and comic strips on law-related themes. His current series is "Scribble-in-Law," a strip reminiscent of Jules Feiffer's work. Check out his LawComix collection of past projects, too. In addition to being a talented artist and a keen observer of the legal and political scene, Fincher is a litigator with the Allison Law Firm in Brownsville, Texas.

Categories: cartoons, Fincher, cross-examination, humor, cool-website

Indexing for Trial Ad Notes

This blog has been running for over a year, so it's gotten harder to plow through old posts to find what you want. I've wanted some sort of index, but hadn't found a reasonably easy way to do it until a few days ago. Now, thanks to FreshBlog (whose URL, confusingly is blogfresh.blogspot.com) and FreshTags (code by Greg Hill, a doctoral student in Austrlia), I've been able to assign "tags" to posts. So far, I've tagged posts from Sept. 2005 to present. As time allows, I'll go back in time.

If you see a post on, say, med-mal and you'd like to see more on that topic, just click on the med-mal "Category" link. Or if you'd like to look for, say, empirical studies or something on voir dire, go to the drop-down menu on the right and scan for the category. I hope this is helpful. As always, I welcome feedback.

Categories: notes-about-the-blog, FreshBlog, FreshTags

Mardi Gras killer is sentenced again

Five years after Seattle's "Mardi Gras riot," Jerell Thomas, a young man who was convicted of killing another young man during the melee, was resentenced by Judge Theresa Doyle. The Seattle Times: Local News: Mardi Gras killer is sentenced again

Resentencing was necessary because Thomas was convicted of felony murder. Since then, the Washington Supreme Court ruled that assault cannot be a predicate crime for second degree felony murder. Personal Restraint Petition of Andress, 147 Wash. 2d 602, 56 P.3d 981 (2002), legalwa.org, Westlaw. Following that precedent, Division 1 vacated the felony murder conviction and remanded for further proceedings. State v. Thomas, 127 Wash. App. 1004, 2005 WL 984781 (April 25, 2005), Westlaw (unpublished decision).

In 2001, Thomas was sentenced to 15 years. Yesterday, after he pleaded guilty to second-degree manslaughter, Judge Doyle sentence him to 10 years, the maximum allowed.

Categories: felony-murder, Personal-Restraint-of-Andress, sentencing, Thomas, Doyle, cases, news

Zags Retire Judge Burgess's Number

Judge Franklin D. Burgess (W.D. Wash. - Tacoma) was a star basketball player in college, averaging 32.4 points a game in his senior year. Last week, Gonzaga honored him in a ceremony at which his number was officially retired. SR.com: A fitting tribute for Burgess Judge Burgess took senior status in the Western District of Washington (Tacoma) last March, eleven years after his confirmation. He is a Gonzaga Bulldog twice over, with a BA and a JD.

Today is just Feb. 28, but there's already a little March Madness in the air. Go Zags.

Categories: Burgess, judges, sports, Gonzaga, news

Supreme Court Debates Defendants' Rights to Blame Others

[CASE] Should a defendant always be able to present an argument that someone else committed the crime? That's an issue in Holmes v. South Caroline (04-1327), a case before the U.S. Supreme Court. Law.com - Supreme Court Debates Defendants' Rights to Blame Others, AP, Feb. 23, 2006.

The question on which cert. was granted is:

Whether South Carolina's rule governing the admissibility of third party guilt evidence violates a criminal defendant's constitutional right to present a complete defense grounded in the Due Process,
Confrontation, and Compulsory Process Clauses?

The case below is at 605 S.E.2d 19 (S.C. 2004).

Categories: Holmes-v-SC, SupremeCourt, criminal-law, cases, other-suspect-defense

Law.com - Bankruptcy Attorneys Fight for Status

[NEWS] Lawyers are challenging a requirement in the new bankrupcty law that says they must advertise themselves as "debt relief agencies." Bankruptcy Attorneys Fight for Status, National Law Journal, Feb. 23, 2006.

The statutory definition is 11 USC § 101:

(12A) The term "debt relief agency" means any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer under section 110 [11 USCS § 110], but does not include--
[(A) employees of the agency; (B) nonprofits; (C) creditors; (D) banks and credit unions; (E) authors, publishers, etc.]

Sound like lawyers?

The advertising restrictions are in 11 USC § 528.

One of the lawyers mentioned in the article is Jay S. Jump, of the Jump Law Group in Seattle. The firm's website currently states: "Proudly Designated as a Debt Relief Agency in the Eastern District and Western District of Washington by authority of the Congress of the United States and President George W. Bush."

Categories: bankruptcy, practice-of-law, news, legislation

The Buzz About Med Mal Reform

[LEGISLATION] On Monday, Governor Christine Gregoire announced that she had brought together representatives of various groups -- often bitterly opposed -- to negotiate a compromise bill on medical malpractice. Here's some of the coverage:

• Governor's press release.


• David Postman, Doctors, lawyers make deal on medical-malpractice bill, Seattle Times, Feb. 21, 2006.


• Chris McGann, Lawyers, doctors agree on malpractice reform, Seattle P-I, Feb. 21, 2006.


• Carol M. Ostrom, Malpractice deal is a "first step," but many tough issues remain, Seattle Times, Feb. 22, 2006.


• Editorial, Gregoire herds cats to malpractice law, Seattle Times, Feb. 22, 2006.


• Editorial, Capitol Watch: Good medicine, Seattle PI, Feb. 22, 2006.

The compromises worked out have been incorporated in HB 2292, currently pending in the legislature. I believe the current version is in the Senate Committee Amendment, which passed the Senate unanimously today.
Today's Senate committee report (from the Committee on Health & Long-Term Care) is here.

Categories: med-mal, news, legislation, Gregoire

Jurors believe tax protester defrauded the government | TheNewsTribune.com | Tacoma, WA

[NEWS] A federal jury convicted a Tacoma man of conspiring to defraud the federal government by marketing sham trust packages that he told customers would shield them from taxes. Jurors believe tax protester defrauded the government TheNewsTribune.com Tacoma, WA

Categories: tax, criminal-law, news,

Cross Examining a Witness without Alienating the Jury

[TIP] A snarly cross-examination might trap the witness in an inconsistency -- but it might also make the jury think you're a jerk and create sympathy for the other side. Here are more great tips from Elliott Wilcox. Cross Examining a Witness without Alienating the Jury.

Categories: cross-examination, tips

Child Hearsay - Testimonial or Not?

[CASE] A trial court allowed testimony by the mother and a family friend of a three-year-old about the child's statements relating to the defendant's sexual conduct with her. Did this violate his confrontation rights under Crawford v. Washiington? The Washington Supreme Court says no. State v. Shafer, --- P.3d ----, 2006 WL 307904 (Wash. Feb. 9, 2006), Westlaw.

The issue turns on whether the statements were "testimonial." Chief Justice Alexander, writing for the majority, says that the declarant -- the child -- did not believe that the statements would be used in an investigation or prosecution. Justice Sanders, in dissent, says that the majority's approach is subjective, and instead urges an objective test, looking at a reasonable person. The majority responds in a footnote (note 8):

The proper test to be applied in determining whether the declarant intended to bear testimony against the accused is whether a reasonable person in the declarant's position would anticipate his or her statement being used against the accused in investigating and prosecuting the alleged crime. The inquiry focuses on the declarant's intent by evaluating the specific circumstances in which the out-of-court statement was made. * * * Applying this standard, it defies logic to think that T.C., as a three-year-old child, or any reasonable three-year-old child, would have an expectation that her statements about alleged sexual abuse could be used for prosecutorial purposes. Thus, whether one looks to T.C.'s subjective appreciation of the legal ramifications of her statements, as the dissent incorrectly asserts we do, or whether one objectively looks to what a reasonable, competent person in T.C.'s position would understand to be the import of the statements, which is the proper determination, the outcome of this case would not change. A three-year-old child, whether T.C. or a fictional reasonable one, who tells her mother and a family friend in a private setting about sexual abuse is not making the statements in anticipation that the statements will later be used to prosecute the alleged sexual abuse perpetrator.

And to that, Justice Sanders says that a reasonable person is a reasonable person, not a person with the subjective experiences of a three-year-old.

Justice Chambers concurs in the result, but writes separately to observe that the state constitution may in some circumstances provide greater protection than the U.S. Constitution's Sixth Amendment.

(By the way, students: All three writing Justices are graduates of the UW Law School -- Chief Justice Alexander in 1964, Justices Chambers and Sanders in 1969. Will you be sitting on the bench with a classmate in 35 years? Which one(s)?)

Categories: hearsay, evidence, Crawford-v-Washington, cases, UW, Alexander, Chambers, Sanders

Asst GC Fighting Plaintiffs' Lawyers

Steven Hantler, an assistant general counsel of DaimlerChrisler AG, is aggressively fighting plaintiffs' lawyers, trying to get fee awards reduced, vigorously defending class action suits instead of settling, and even suing some lawyers for fraud. He has also campaigned against judges up for re-election. Here's a profile of him and his crusade: Fighting Against Big Tort Awards in Court and Beyond, American Lawyer, Dec. 28, 2005.

Categories: tort-reform, practice-of-law, news,

What Should You Do When Jurors Have Special Expertise?

What should you do when jurors have special expertise? If there's an accountant on the jury, would you want her in the jury room adding to what the experts testified about the standards of the profession? If there's a nurse, would you worry about his assessment of the medical experts' testimony being given too much weight by other jurors? The National Law Journal discussed various issues, including whether there should be special jury instructions. Law.com - Dealing With Jurors' Expertise, Nat'l L.J., Dec. 23, 2005.

How about lawyers? A prosecutor from Oregon says that the only murder trial he lost had a lawyer on the jury. "They're terrible jurors -- I should hit myself in the face with a stick if I ever let a lawyer on a jury again."

Categories: juries

Law.com - Judge Lectures Counsel on Request to Make Documents 'Disappear'

[NEWS] A federal judge in New York expressed doubts about sealing a TRO after the parties had reached a settlement. In the case, two financial executives had been accused them of stealing client information from AIG Capital Partners. The case settled the day after a forensive computer specialist reported that one of the defendants had accessed thousands of documents on the company's computers after he was no longer working there.

Judge Lewis A. Kaplan said that he understood the argument that sealing documents may encourage pivate settlements. But, on the other hand,

'That may be defeated where a private settlement deprives the public of information that has been placed before a federal court, and that indicates a risk of harm to members of the public, and I wondered whether that analogy isn't present here.'

The judge also wondered whether sealing the TRO would really keep the allegations about the defendants' conduct under wraps:

The judge * * * told [the defendants' attorney] he understood the defendants' 'PR concerns' but he also questioned the value to them of sealing the temporary restraining order while keeping the complaint, the evidence, and the fact the defendants had 'put up a mighty fight to keep the [TRO] language secret' in the public record.

'[W]ith all due respect,' the judge said, 'I think what I would say if I were representing your clients is what are you doing here? You're making it so much worse for yourself.'

Law.com - Judge Lectures Counsel on Request to Make Documents 'Disappear', N.Y.L.J., Feb. 14, 2006.

Categories: settlements, sealed-records, news

How to Ask Leading Questions

[TIP] Here are some tips on cross-examination -- How to Ask Leading Questions -- from Elliott Wilcox of Trial Theater. One fun example illustrates how a lawyer could ask Wile E. Coyote a series of leading questions to tell the story of the rocket skates.

"Your name is Wile E. Coyote, isn't it?"
"On March 23rd of last year, you placed an order with the Acme Co, right?"
"Three days later, a package arrived, didn't it?"
"A box from the Acme Company."

... and so on.

He also recommends practicing your leading questions on your dog, who is much less likely to take offense than your spouse or date.

Categories: cross-examination, tips, dogs

Judge Frank "Don" Howard Dies

[NEWS] Judge Frank "Don" Howard died on Jan. 29. A 1956 graduate of the University of Washington School of Law, Judge Howard served on the King County Superior Court from 1969 to 1988 and the United States Bankruptcy Court from 1988 to 1996. The Seattle Times: Obituaries: Frank "Don" Howard, 74, "a true judge's judge".

Categories: judge, obituaries, Howard, news, UW

"Voir Dire" - UW Drama

[EVENT] The UW School of Drama is putting on "Voir Dire" Feb. 23 - March 5.

The play, by Joe Sutton, is described like this:

Voir Dire: to speak truly. That's what six jurors are asked to do when a prominent black high school principal is arrested for buying crack cocaine. Sutton's explosive look at the American justice system was a finalist for the Pulitzer Prize, and asks the question posed to every potential juror - can you be fair?

The production is directed by Prof. Valerie Curtis-Newton.

Categories: event, juries, UW

Lawyer Shot by Rival Dies

[NEWS] Kevin Jung, the lawyer shot in the head by William Joice in 2004, died yesterday of complications from his injuries. The Seattle Times: Local News: Bellevue lawyer shot by rival in 2004 dies

Categories: Jung, Joice, news

AFTER INNOCENCE

[EVENT] I just saw AFTER INNOCENCE at a benefit for the Innocence Project Northwest. This amazing documentary looks at the lives of several men after they were released from prison after being proven innocent (most by DNA evidence, one by the perpetrator's confession).

The film is at the Varsity through this weekend. If it does well, its run might be extended. They told the audience there tonight that if we were moved and impressed by the film we each should tell 8 or 10 people to go see it this weekend. I was, and so I'm following up right now!

If you don't live near enough Seattle to go to the Varsity, check out the film's website to see when it will show near you.

Categories: event, Innocence-Project, UW, films

Trial of Saddam Hussein

[COOL WEBSITE] The Law Library of Congress has put up a website with materials concerning the Trial of Saddam Hussein. The site

is intended to provide the viewer with essential information related to the relevant trials. It will also set out a selection of reference materials that will further explain important aspects of the trials. In making this selection, the Law Library of Congress does not endorse or attest to the authenticity of any such referenced materials or information.

Categories: famous-trials, saddam-hussein, cool-website

Bill to Limit State Liability

[LEGISLATION] Attorney General Rob McKenna has proposed a bill (SB 6215) that affecting the state's liability for tortious conduct. The state would be liable to conduct that is comparable to private activities for which private persons may be liable. However, the government would not be liable for implementing policy in areas of governmental function requiring discretionary judgment, licensing, failure to enforce law, failure to apprehend people violating laws, or deteminations of eligibility for benefits -- except in certain defined circumstances.

See the Attorney General's briefing sheet about SB 6215, the "Responsible Liability Act" and the law review article he co-authored: Michael Tardif & Rob McKenna, Washington State's 45-Year Experiment in Government Liability, 29 Seattle U.L. Rev. 1 (2005) (abstract) (LexisNexis) (Westlaw).

Trial Ad instructor David Moody wrote an editorial opposing the bill: Stand up for State's Fragile Citizens, Seattle Times, Jan. 31, 2006.

In a letter responding to Moody (Feb. 7), Sen. Adam Kline, one of the bill's sponsors, explains that he does not support the bill, but is obligated as chair of the Senate Judiciary Committee to be the prime sponsor of bills that are requested by the attorney general or state agencies.

Categories: state-liability, legislation, UW, Moody

Famous Trials - Transcripts and More

[BOOKS] Interested in famous trials in history? Would you like to read Clarence Darrow's famous sentencing speech in the Leopold and Loeb case? What about the trial of Bruno Hauptmann for kidnapping Charles Lindbergh's baby? The library has a good collection of books about historic trials. See Calling Perry Mason! (Or: What Do They Really Say in Court?) from the Law Library News column of the Crier, May 10, 2004.

For short articles about many trials in history, see Great American Trials (KF220 .G74 1994 at Reference Area).

[COOL WEBSITE]
And, on the web, see Douglas Linder's Famous Trials (described in earlier post).

Categories: famous-trials, books, cool-website

Is Attorney's Translation of Jury Waiver Enough?

[CASE] A Spanish-speaking defendant was convicted after a bench trial. On appeal, he challenged the validity of his jury waiver, which was printed in English. The defense attorney said on the waiver form that he was fluent in Spanish and had translated the form for the defendant. The Ninth Circuit held that, since the attorney was not a court-certified interpreter the district judge should have conducted a colloquy with the defendant to make sure the defendant understood the jury system and what he was waiving. United States v. Bailon-Santana, 429 F.3d 1258, No. 04-50079, Westlaw (9th Cir. Dec. 6, 2005) (Kozinski, J.). Judge Rawlinson dissented because she believed that the trial judge's questions of the defendant about his waiver were adequate.

Access to qualified interpreters is increasingly difficult. In California, the Spanish-speaking population has grown while the number of interpreters has gone down. See Language Barriers to Justice post.

Categories: interpreters, translation, waiver, criminal-law, cases

RICO Action for Discovery Fraud?

[CASE] During discovery DuPont hid from plaintiff orchid growers the existence of studies showing that Dupont's fungicide was harmful to plants. (It had been contaminated by an herbicide.) The parties settled the plaintiffs' products liability claim. Later, after they learned about the concealed studies, the orchid growers sued under RICO and a number of state common law claims, saying that the discovery violations had fraudulently induced them to settle.

A district court granted summary judgment for DuPont, adopting DuPont's draft order with very few alterations. Recently, the Ninth Circuit reversed, remanding to the district court for further proceedings. The Ninth Circuit did not express an opinion about the merits, but clearly indicated that the cause of action was possible and chiding the (visiting) district judge for granting summary judgment. Living Designs, Inc. v. E.I. DuPont de Nemours & Co., 431 F.3d 353, No. 02-16947, Westlaw (9th Cir. Dec. 5, 2005).

BNA's Expert Evidence Report has a summary: Ninth Circuit Remands Fraud Suit Charging DuPont, Experts Hide Benlate Test Results, Dec. 19, 2005. (UW users should be able to follow the link; it won't work for most others.)

News story (with quotations from lawyers): 9th Circuit Reverses Ghost-Written Opinion, The Recorder, Dec. 13, 2005.

Categories: discovery, experts, rico, cases

10 Tips for Presenting Better Oral Argument

[TIP] A trial judge offers advice for effective oral argument -- e.g., for motions in limine or for evidentiary matters outside the presence of the jury. Loren McMaster, 10 Tips for Presenting Better Oral Argument, Sacramento Lawyer, April 2005.

Categories: motions, oral-argument, in-limine, tips

Trial Lawyer for Animals

[NEWS] This morning's Seattle Times profiled Adam Karp, a lawyer who devotes his practice to animal law issues. Lawyer breaking new legal ground on animal issues Karp graduated from the UW in 1998; he's teaching Animal Law (with Sylvia Glover) here in the spring.

Categories: animal-law, practice-of-law, Karp, UW

Another Note on the Joice Case

[NEWS] The post about the sentencing of the lawyer who shot his opposing counsel linked to the PI article. The Seattle Times has substantially the same story but it has the added bonus of a photo of Trial Ad instructor Craig Sims pointing at a projected image of the victim, permanantly disabled by the shooting. The Seattle Times: Former lawyer sentenced for attack (There are three pictures to click through

Categories: Joice, Jung, Sims, UW, news

Empirical Studies of Med Mal Damage Caps

[RESEARCH] Some advocates of medical malpractice reform urge the adoption of caps on non-economic damages. A couple of recent studies explore the effect.

In a study of jury verdicts in 22 states (using data from the National Center for State Courts), Catherine M. Sharkey found a "crossover effect" -- when non-economic damages were capped, plaintiffs argued for and juries awarded greater economic damages. She found the caps had no statistically significant effect. Catherine M. Sharkey, Unintended Consequences of Medical Malpractice Damages Caps, 80 N.Y.U. L. Rev. 391 (2005).

Sharkey's research was featured at AALS in a panel called "Showcase for Exemplary Empirical Projects." Earlier, the Section on Law and Economics sponsored a panel called "Empirical Approaches to Inquiries in Health Care Law." I only caught part of it, but got a sense of how incredibly complex the issues are. (Of course, Sharkey's article explores the complexities too.)

One of the panelists was Jonathan Klick from Florida State. See Jonathan Klick & Thomas Stratmann, Does Medical Malpractice Reform Help States Retain Physicians and Does it Matter? (Dec. 15, 2005). Their abstract:

Many states have passed medical malpractice law reforms in an effort to retain and attract physicians. However, it is unclear what the net public health effect of such reforms is. While reforms are likely to help states retain doctors, they also diminish incentives to provide a high level of health care. We provide empirical evidence that some malpractice reforms have helped states retain doctors while others have not. However, retention of doctors comes at a cost. We show that some malpractice law reforms have lowered the level of care provided, as indicated by an increase in infant mortality. This suggests that some of the tort reforms lead to worsening health outcomes.

Another speaker in the Health Care panel was Ronen Avraham from Northwestern University School of Law. See his draft paper (with co-author David C. Lee), An Empirical Study of the Impact of Tort Reforms on Medical Malpractice Payments. Their conclusion? Here's the abstract:

This study determines the statistical impact of six types of tort reform on the frequency, size, and total annual settlements in medical malpractice over seven years between 1991-1998. Regressions are performed on the National Practitioner Data Bank, a panel data which contains over 200,000 complete malpractice payment records over the years. Of the six tort reforms we examined, only one reform, caps on pain-and-suffering damages was effective, three types of reform had were counter-effective, and two reforms had no statistically significant effect on the total annual payments. These mixed, sometimes counter-intuitive results have significant implications for lawmakers dealing with the contentious issue of medical malpractice.

See also Ronen's recent article in which he proposes a law and economics approach to pricing pain and suffering. Avraham Ronen, Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change, 100 NW. U.L. Rev. 87 (2006).

The third speaker was Albert Yoon (Northwestern), who recently studied the effect of Nevada's mandatory arbitration in med mal cases, comparing results with those in neighboring states. Albert Yoon, Mandatory Arbitration and Civil Litigation: An Empirical Study of Medical Malpractice Litigation in the West, 6 Am. L. & Econ. Rev. 95 (2004). He found that Nevada's decreases in damage awards, attorney's fees, and length of litigation were part of a broader trend. Arbitration reduced the likelihood of claims going to trial.

Categories: empirical-studies, med-mal, damage-caps, tort-reform, mandatory-arbitration, AALS,

Exceptional Sentence for Lawyer Who Shot Lawyer

[NEWS] The lawyer who was convicted of attempting to murder opposing counsel in a business case (see post) was sentenced on Friday. Ex-prosecutor is given stiff sentence The sentence, nearly 32 years, is only the second exceptional prison sentence that Judge Julie Spector has handed out in her career. (She has been on the King County Superior Court since Nov. 1999.)

Categories: Joice, Jung, judges, exceptional-sentence, Spector, sentencing, news

Email for the Defense in White Collar Case

The National Law Journal reports (Jan. 25, 2006):
"Legal Technology - E-Mail Saves the Day."

Key e-mails and the gamble of letting the defendant take the stand helped a Houston lawyer accomplish what many would have bet against: winning a defense verdict for an energy trading executive in the heart of Enron country.

Thomas A. Hagemann of Dallas' Gardere Wynne Sewell convinced a federal jury in Houston recently that Todd Reid, 43, the former trading executive at Duke Energy Corp., did not illegally manipulate the company's gas and power trades from March 2001 to May 2002 to inflate his unit's profits to reward himself and his traders with huge bonuses. U.S. v. Kramer, No. 4:04cr155 (S.D. Texas).

The defense team was pleased to have a jury with 10 college grads (some with advanced degrees). What sort of voir dire could lead to that? Or did they just get lucky?

Contrary to the government's theory that Reid and Kramer were trying to hide something from the company, "the vast weight of Reid's e-mails" showed on cross-examination that the former Duke vice president "did his best to make sure that everyone was communicating," Hagemann said.

* * *

. . . a second defining moment of the trial was when Reid spoke to the jury himself . . .

". . . It is a truism -- or it is often said -- that when a defendant takes the stand, the focus shifts from the weight of the government's evidence to whether a defendant is telling the truth. If the jury believes him, he is acquitted. If they don't, he is guilty as charged. They believed him," Hagemann said.

Categories: email, evidence, white-collar, criminal-law, news

Punitive Damage Award against Philip Morris in OR

[CASE] The Oregon Supreme Court upheld a $79.5 million punitive damage award against a cigaratte manufacturer in favor of a widow whose late husband kept smoking because he believed a company wouldn't sell something that was truly harmful. The company plans to appeal. Law.com - $79.5M Judgment Against Philip Morris Upheld in Oregon

The case is Williams v. Philip Morris Inc., --- P.3d ---, 2006 WL 242456 (Ore. Feb. 2, 2006). This is the latest stop in a long procedural trail:

• Oregon Court of Appeals, 6/5/02 (48 P.3d 824)
• Oregon Court of Appeals reconsideration, 8/7/02 (51 P.3d 670)
• Oregon Supreme Court denying review, 12/24/02
• U.S. Supreme Court granting certiorari, vacating judgment, and remanding "for further consideration in light of State Farm Mutual Automobile Insurance Company v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003)," 10/6/03 (124 S. Ct. 56 (mem.))
• Oregon Court of Appeals on remand, 6/9/04 (92 P.3d 126).

The Oregon Supreme Court analyzed the damages using the "guideposts" set out in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S Ct 1589, 134 L.Ed.2d 809, Findlaw (1996) (degree of reprehensibility, ratio of punitive damages to compensatory damages, and civil or criminal sanctions for comparable conduct). The Oregon court concluded:

The Gore guideposts are not bright-line tests. * * * Campbell specifically contemplated that some awards exceeding single-digit ratios would satisfy due process. * * * Single-digit ratios may mark the boundary in ordinary cases, but the absence of bright-line rules necessarily suggests that the other two guideposts--reprehensability and comparable sanctions--can provide a basis for overriding the concern that may arise from a double-digit ratio.

And this is by no means an ordinary case. Philip Morris's conduct here was extraordinarily reprehensible, by any measure of which we are aware. It put a significant number of victims at profound risk for an extended period of time. The State of Oregon treats such conduct as grounds for a severe criminal sanction, but even that did not dissuade Philip Morris from pursuing its scheme.

In summary, Philip Morris, with others, engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others, even when Philip Morris always had reason to suspect--and for two or more decades absolutely knew--that the scheme was damaging the health of a very large group of Oregonians--the smoking public--and was killing a number of that group. Under such extreme and outrageous circumstances, we conclude that the jury's $79.5 million punitive damage award against Philip Morris comported with due process, as we understand that standard to relate to punitive damage awards. It follows that the Court of Appeals correctly held that the trial court should have entered judgment against Philip Morris for the full amount of the jury's punitive damage award.

On this side of the Columbia, by the way:

Punitive damages are not allowed in Washington unless specifically authorized by statute. The Washington Supreme Court has continually held that punitive damages are unsound in principle and contrary to public policy.

David K. DeWolf & Keller W. Allen, 16 Tort Law and Practice section 5.10 (2d ed. current through 2006 supp.).

Categories: punitive-damages, tobacco, cases

Tips for Opening Statements

[TIP] Since students are preparing opening statements, I visited a few of my favorite spots for trial tips to look for some good opening argument tips.

The Texas Young Lawyers Association and Texas Bar CLE have a series of 10-minute videos on different practical topics. Plug in your headphones and check out:

• Opening Statements (mark S. Werbner, 6/05.
• Tips on Effective Opening Statements (Tom Henson, 6/05).

From Elliott Wilcox's Trial Theater, here's How Can I Tell More Powerful Opening Statements?. His advice? Focus on the story you're telling, not the facts, and make it more immediate by using the present tense.

From Evan Schaeffer's Illinois Trial Practice Weblog:

• Notes on Opening Statement.
• Trying Civil Cases by Giving Them a Criminal Theme, with a Focus, Once Again, on Vioxx.
• Opening Statement: Keep It Simple.
• Use Demonstrative Evidence in Opening Statements.

Schaeffer recommended:

• The Opening Statement: Coming Soon to a Theatre Near You, by Kirkland & Ellis attorney Michael Jones (ABA Automobile Law Committee Newsletter(Oct. 1, 2004)).
• Dennis Kennedy's review of Beyond Bullet Points (also suggesting a screenplay approach to argument).
• Timothy W. Monsees, Trial Tip: Find the Dastardly Deed.
• Jeffrey T. Frederick (Dir., Jury Research Services, Nat'l Legal Research Group), Persuasion at Trial: Opening Statement.

The ABA Section of Litigation has: Method Acting for Lawyers (includes tips on how to calm yourself down, keep your voice normal, and appear calm). Note: this "Tips from the Trenches" feature changes regularly. In a few weeks, clicking on this link will get you a new article.

Framing a Worldview at Trial was originally in "Tips from the Trenches" (April 2005). So was The Opening Statement: Making an Impact on the Jury.

A law firm (Ungaretti & Harris) newsletter has Carpe Diem for Powerful Opening Argument.

Illinois Legal Advocate (training for legal aid lawyers) offers a sample opening statement in an eviction case.

All of the above are tips -- quick pieces to read for ideas about presentation. I also came across a scholarly article presenting empirical research:

Shelley C. Spiecker & Debra L. Worthington, The Influence of Opening Statement/Closing Argument Organizational Strategy on Juror Verdict and Damage Awards, 27 Law & Human Behavior 437 (2003).

That won't help you prepare your opening statements this week, but it might be interesting for those of you with a scientific bent.

Categories: opening-statements, empirical-studies, tips,

Presenting Information Visually

[TIP] Want to learn more about presenting information visually? Check out the work of Edward Tufte, a professor emeritus at Yale where he taught courses in statistical evidence, information design, and interface design. His books include Visual Explanations, Envisioning Information, The Visual Display of Quantitative Information, and Data Analysis for Politics and Policy.

Tufte has some strong criticisms of PowerPoint. In PowerPoint Does Rocket Science he suggests that overreliance on simple bullet points contributed to the Columbia disaster.

Categories: exhibits, Tufte, PowerPoint

Trial Exhibits - Some Samples

[TIP] Class this week discussed the use of trial exhibits. There can be quite a range, starting with the classic diagram of an intersection. I did a little searching to see if I could find some interesting examples.

• A law firm in Colorado specializing in construction defect litigation has posted two PowerPoint presentations ("Building the multi-family development" and "Building a house") as samples of its work.
• The FBI's Investigative and Prosecutive Graphic Unit shows samples of its work, including diagrams and this graphic showing bullet trajectories:

• Some big cases' exhibits have been posted -- e.g., Minnesota tobacco litigation; U.S. v. Microsoft (the government's exhibits); various Watergate trials (see microphone hidden in chapstick below) (from Gerald R. Ford Library and Museum).

An amazing number of companies offer their services to lawyers in creating graphics, computer animations, and so on.

• The Evidence Store got my attention with a quip: "Even Moses Used Exhibits! The ten commandments were possibly the first use of federal rule 1006 permitting summary charts of otherwise voluminous evidence." Another page asks: "Need a hand for your day in court? How about a foot or a skull?" Amusement aside, the site offers good illustrations of timelines; flow, bar, and column charts; pain and suffering charts; and diagrams.
• Animators at Law is another company that produces custom graphics. It also has examples explaining different techniques. For instance, under "metaphor," it illustrates "garbage in, garbage out:"

For reading, see:

Effective Use of Courtroom Technology: A Judge's Guide to Pretrial and Trial (2001) is a little dated, but offers a good overview of the technology (document cameras, projectors, etc.) and the issues. This 358-page manual was a project of the Federal Judicial Center and NITA.

"Beyond the Flip Chart: How to Use the Latest Courtroom Technology to Wow a Judge or Jury," is a two-page article from Legal Times, March 22, 2004.

"Demonstrative Exhibits That Make a Difference," a two-page article by Linda L. Listrom from Trial Practice (an ABA Litigation Section newsletter), Spring 2005.

(By the way, why do the articles about the power of good graphics have no graphics?)

Categories: exhibits, tips