Friday, June 30, 2006

Justices, 5-3, Broadly Reject Bush Plan to Try Detainees - New York Times

The U.S. Supreme Court ruled yesterday that the military tribunals set up for prisoners at Guantanamo were unauthorized by federal statute and violated international law. Linda Greenhouse, Justices, 5-3, Broadly Reject Bush Plan to Try Detainees - New York Times, NY Times, June 29, 2006.

The opinion, Hamdan v. Rumsfeld, No. 05-184, is here.

There will be plenty of coverage and commentary. I just wanted to note the local angle: Hamdan's attorneys included one of Seattle's largest firms, Perkins Coie. Nancy Bartley, Local Firm's Role in Case "Very Satisfying," Seattle Times, June 30, 2006. Perkins's press release after the oral argument is here.

Because of my UW boosterism, I'd be sure to tell you if the lawyers were grads or Trial Ad instructors, but they aren't. The five Perkins attorneys listed in the press release went to law school at Chicago, St. Louis University, Vanderbilt, Dickinson, and Washington and Lee. Our "local" firm hires nationally as well as playing a role in a case that is nationally and internationally important.

And now, I'm off for my vacation...

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Thursday, June 29, 2006

Away from the Blog

I'll be away from my office for two weeks -- first for a vacation (yippee!) and then for the annual meeting of the American Association of Law Libraries (yippee!)(I do enjoy the meetings -- in a different way than the out-and-out vacation, but I do). So I won't be posting for a while. I'm sure there will be lots of interesting news, tips, and legal developments for me to sample when I return. Something else to look forward to, after the vacation and the interesting programs and visits with far-flung colleagues!

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Wednesday, June 28, 2006

S. Ct. Reverses Recuenco

The Supreme Court reversed a case in which the Washington Supreme Court unanimously held that a sentence could not stand because of a Blakely violation. Washington v. Recuenco, No. 05-83 (June 26, 2006)(reversing State v. Recuenco, 154 Wash. 2d 156, 110 P.3d 188 (2005), (In another case, the Washington court had held that Blakely errors are never harmless. State v. Hughes, 154 Wn.2d 118 (2005),

The defendant, Recuenco, was charged with second degree assault. The "deadly weapon" allegation in the information was: "being armed with a deadly weapon, to-wit: a handgun." The jury found (in a special verdict form) that he did have a deadly weapon. The prosecutor sought a firearms enhancement because the weapon he'd had was a handgun. The trial court imposed a sentence enhancement of 3 years (because of the firearm) rather than 1 year (the enhancement for a deadly weapon). The Washington Supreme Court, finding this violated Apprendi and Blakely, vacated the sentence and remanded for sentencing supported only by the special verdict finding of a deadly weapon.

The U.S. Supreme Court, in an opinion by Justice Thomas, held that "Failure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error." -- and therefore, it could be harmless error, depending on the circumstances. The case is remanded to the Washington Supreme Court for further proceedings. Justice Kennedy concurred and Justices Stevens and Ginsburg dissented.

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U.S. Tactic on KPMG Questioned - New York Times

Yesterday Judge Lewis A. Kaplan (S.D.N.Y.) ruled that KPMG was improperly pressured by the Justice Department not to pay or to cap the legal fees of its employees who were under investigation. U.S. Tactic on KPMG Questioned - New York Times.

Many federal prosecutors tell corporations that they must take certain actions in order to show that they are cooperating with an investigation. These actions -- outlined in a 2003 document referred to as the Thompson memorandum (after then deputy AG Larry D. Thompson) -- include limiting the company's payment of employees' legal fees and sometimes firing employees (before they are convicted). Many groups -- including such rare bedfellows at the U.S. Chamber of Commerce and the ACLU -- have criticized the guidelines.

The judge says that the prosecutor held "the proverbial gun" to KPMG's head, forcing it to cut the attorney's fees. What's the remedy? The judge did not dismiss the indictments (a remedy the defendants probably would have welcomed). And he can't force KPMG to pay the fees. Instead he gave the individuals 14 days to file a civil suit against KPMG for the fees.

Here's a Reuters story that describes a little of the underlying case -- a huge tax fraud case: Judge Faults US for Pressuring KPMG Over Fees, June 27, 2006.

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Friday, June 23, 2006

PI Fraud Gets Disbarment

The Pennsylvania Supreme Court has disbarred a lawyer who fraudulently represented uninjured people in personal injury cases. Representation of Uninjured Clients Brings Disbarment for Pa. Lawyer, Legal Intelligencer, June 23, 2006.

After a federal investigation revealing that the lawyer hired people to recruit clients and helped stage slip-and-falls, among other things, he pleaded guilty in 2003 to one count of health care fraud and one count of filing a false tax return statement. He was sentenced to one year in prison and nearly $261,500 in restitution. At a disciplinary hearing the lawyer said:

I got into personal injury cases and ... when I was a young lawyer, [people told me], "You're going to get accident cases of people that aren't really hurt, you say they're hurt and you send them to the doctor."

That's not right, OK? And I did it for 30 years and there's a thousand more here in this state that do it, and I told [the investigators] that, and they said, "Yeah, but you got caught," [for] which I served my time, I didn't make excuses, so that's true.

The court's order contains no discussion, adopting by reference the report and recommendations of the disciplinary board. But if you're curious, it's here: Office of Disciplinary Counsel v. Radbill, No. 932 Disciplinary Docket No. 3 (Pa. June 19, 2006).

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Chief Justice Alexander Honored

Chief Justice Gerry L. Alexander will receive the 2006 American Inns of Court Ninth Circuit Professionalism Award at the Ninth Circuit's Judicial Conference next month. Ninth Circuit, Inns of Court to Honor Washington Supreme Court Chief Justice (press release, June 21, 2006).

Chief Justice Alexander, a UW law graduate ('64), is the longest-serving chief justice in our Supreme Court's history. He began his career in private practice in Olympia, then served as a superior court judge in Thurston and Mason counties (1973-84). He was on the Court of Appeals (Div. 2) 1985-94, and has been on the Washington Supreme Court since 1994.

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Thursday, June 22, 2006

Toilet Story

CNN features a video about a beautiful new courthouse in Nashville with a problem: Loud Toilets Tanking Courtroom Dignity. The holding area for prisoners has a restroom adjoining courtrooms and, alas, the noise of flushing can be heard all too well in the courtrooms. Building staff are working on soundproofing and promise that the problem will go away.

During the time I was working on this post, I had to try several times to get to the video clip. My guess is that it's getting lots of hits. As news, it's not all that remarkable, but it's hard to resist potty humor. (Obviously, I'm not above it myself.)

Update (July 14): The video clip is no longer available. Apparently CNN only leaves its free video up for a limited time. Take my word for it: there was a tour of an empty courtroom accompanied by very loud flushing sounds from the room next door.

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Graphic by mw.

House Opens Door to DNA Claims

The Supreme Court in House v. Bell, No. 04-8990 (June 12) held that a man who had been sentenced to death in 1986 had met the requirements of the actual-innocence exception to the rule that habeas isn't available to prisoners who have forfeited claims under state law. At the time of his trial, evidence indicated that semen on the clothing of the rape-murder victim matched his. That was based only on blood type and the characteristic of being a "secreter." Later DNA testing showed that the semen was her husband's. Because of the Supreme Court's ruling, House will get a new hearing.

An article in the ABA Journal eReport explores the significance of the case. Mark Hansen, DNA Evidence Cited in High Court Ruling: Expect More Innocence Claims to Come, Experts Say, June 16, 2006.

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Spam Filter No Excuse for Late Filing

Seeking leave to extend the time for filing a notice of appeal from summary judgment, an Arkansas attorney justified his lateness by saying he had not received notice of the order until about six weeks after the order, when opposing counsel sent him an email message asking if he had decided not to appeal. However, attorneys representing two parties on the other side testified that they had sent him email messages on the date of the order and the day after. Despite the attorney's speculation that he might have missed those messages because of a spam filter, the court denied his motion for permission to file late:

The record indicates that emails were sent to appellant's counsel by both attorneys Waddell and Watts within days of the entry of the orders that gave notice that the orders had been entered. Even if we could say that appellant's counsel received neither email, we could not conclude that counsel acted with due diligence in keeping up with the status of the case. Appellant's counsel was aware that two orders had been submitted to the court as of February 21, yet for over a month, counsel neglected to ascertain whether the court had entered the orders. Under these circumstances, we find no abuse of discretion in the denial of the extension motion.
Moody v. Farm Bureau Mutual Insurance Co.ca05-910, No. CA 05-910 (Ark. Ct. App. March 8, 2006) (unpublished). Here is an article from BNA's Electronic Commerce & Law, June 21, 2006. (This source is limited to subscribers.)

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Wednesday, June 21, 2006

The Fall of The Father Of the Year

Legal journalist Dahlia Lithwick reflects on the case of Darren Mack, a Reno man who allegedly stabbed to death his estranged wife and shot (but did not kill) the family law judge presiding over their case. In this instance,the author is not just another journalist: she knew the couple and represented the man in his first divorce years ago. She doesn't pretend to have a special insight about the particulars of this incident (why the man might have done what he is accused of), but she comments on the experience of being a litigant in family court:

[T]he judge doesn't have to be an ogre to make someone suffer in family court. I don't know what drives a person to snap, but I do know this about family law: If you strongly self-identify as a parent, and Darren Mack did, then it can be uniquely brutalizing.

* * *

I suspect that men whose public lives are defined by fatherhood are going to be disappointed by the court system, though they don't always see it that way. They put themselves in the hands of the system to rescue this part of their identity. Their marriage is over but they're still sure they can be Father of the Year. * * * But the system is crafted to make you share that parenting trophy -- sometimes while still carrying the full financial load. And suddenly, without warning, you're Father of the Alternating Weekend.

The lawyers I worked for did everything in their power to help clients maintain perspective and foster sanity. But if you are the sort of person who desperately wants to use the courts to crush your opponent, you don't always hear that.

Divorce courts tend to leave that desire to crush unresolved. Family court judges have no interest in crushing anyone, so there are few epic victories in family court. The judges and the lawyers and the court-appointed special advocates and the forensic accountants and the therapists all work hard to more or less split the baby. And in the best cases, the parents are wildly frustrated but the kids are stable.

Maybe a system that looks adversarial isn't the best way to foster that compromise. Courts create the illusion that at the end of the day there will be a winner. Yet, in my limited experience, no one has ever "won" their divorce.
Dahlia Lithwick, The Fall of The Father Of the Year, Washington Post, June 18, 2006, at B02.

Hat tip: Carolyn Elefant at MyShingle.

Update (6/22): The Reno Gazette-Journal is hosting a blog about the incident: Judge Weller Shooting. One commenter remarked that some reaction was skewed, focusing attention primarily on the judge (consider the blog title: "Judge Weller Shooting"). It's bad to attempt to kill a judge, but shouldn't the community also be upset about the successful killing of the man's wife? Many news stories can be found here.

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CourtLink Strategic Profiles

CourtLink is a subsidiary of LexisNexis with docketing information for various courts. Most academic subscribers do not have access, but now LexisNexis has made CourtLink "Strategic Profiles" available to law school users. (In the Legal tab, look in the right column, under Briefs, Motions, etc.)

With Strategic Profiles, you can get a statistical report of a lawyer's practice. For example, here is part of the report showing Michael Reiss's cases in federal district courts:

It's not surprising that this former EEOC regional counsel has a practice dominated by employment law -- but it's cool to have the figures. You can also get a list of parties represented. Another pie chart will show whether the attorney has representated defendants, plaintiffs, or other parties. (In Reiss's case, it's almost entirely defendants.)

You can get a similar profile for an entire firm. Here is a portion of the profile for Seattle's Schroeter Goldmark and Bender:

You can also generate profiles of judges. Here's one for Judge Robert Lasnik:

You can also research a litigant. For instance, in the last couple of years, Microsoft has been a party in more trademark cases than copyright cases, over 40% of its federal cases have been in the Western District of Washington, and it's been represented by Preston Gates & Ellis in over 40% of its federal cases.

Note: Be careful when you read the charts. At first glance, I thought the big red pie slice for Microsoft was coded for personal injury but when I double-checked I saw it was trademark (which, of course, makes more sense). Look for name variants -- for instance Microsoft has been represented by both "Preston Gates & Ellis" and "Preston Gates & Ellis (Sea)," and if you only paid attention to one name you'd think the firm handled only a fifth of Microsoft's litigation.


  • The federal district court information is for civil litigation only. You won't be able to find the criminal cases prosecuted or defended by a particular attorney.
  • State information is limited. You can find data about trial court cases in New York and selected counties in California, Florida, and Illinois, as well as Delaware Chancery cases. But this service does not have information about most states. A company rep told me they plan to add coverage of more states.
Obviously this has many uses. Students, in the short term, think about preparation for job interviews! Lawyers can find out about opposing counsel or the experience of counsel they'd like to call on in another jurisdiction.

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Terry Stops in Washington

In Terry v. Ohio (1968), the Supreme Court held that a person could be stopped ("seized") and frisked when the police officer has reason to believe (based on "specific and articulable facts") that his safety or the safety of others is in danger. Of course, the rule has been interpreted and shaped over the years in federal cases.

What's the story here in Washington, where our constitution has stronger privacy protections than the U.S. constitution's? Jaime Drozd Allen gives us an overview of the caselaw in Washington Limitations on Investigatory Stops, Bar Bull., June 2006.

[Note: the URL for this article after the next issue comes out will be:]

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Monday, June 19, 2006

Law School Debt and Career Choice

Carolyn Elefant at has an interesting post about How Student Loans Influence Legal Career Choices. Citing a New York Times article, she describes an experiment NYU is in the middle of.

From 1998 to 2001, NYU law school gave one group of students loans -- with the promise of debt forgiveness if they go into the public sector. It gave another group grants -- with the caveat that the grants would be converted into loans if the students did not go into the public sector. Preliminary indications are that the perception of big debt makes a difference -- between 36 and 45% more of the students in the grant group went into the public sector than did students in the loan group.

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The Newer Generations in the Jury Box: Who Will Favor Your Cause?

Litigation consultant Karen Lisko offers some tips about younger generations of jurors. First she emphasizes that the strongest predictor of verdicts is the evidence, not who's on the jury. Moreover, individual jurors are complex; their attitudes cannot be reduced to a demographic profile. With those caveats in mind, she characterizes younger generations (Gen X, Gen Y) as wanting to see more data -- and they wanted presented concisely in a technological way. Gen X jurors hold some values often associated with older jurors, such as "personal responsibility" and "self-reliance." Gen Y jurors value teamwork and value "getting along" in the jury room.

Karen Lisko, The Newer Generations in the Jury Box: Who Will Favor Your Cause?, Law Practice Management, June 2006, at 43.

Lisko is with Persuasion Strategies, a service of Holland & Hart, a multistate law firm based in Denver. Persuasion Strategies offers a series of Litigation Tips -- several-page papers discussing topics such as anti-corporate bias in jurors, differences between "red state" and "blue state" jurors, and factors affecting the persuasiveness of opening statements and closing arguments.

Graphic by mw.

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Friday, June 16, 2006

"Knock and Announce" Case

In Hudson v. Michigan the Supreme Court yesterday held that evidence from a search need not be suppressed although the police violated the "knock and announce" rule." The officers had a warrant and they announced their presence, but they did not knock and they waited only a few seconds before walking through the home's unlocked door.

Robert Ambrogi at summarizes commentary by several bloggers. Some worry that the case signals the decline (or death) of the exclusionary rule.

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Graphic by mw. (By the way, I know these pictures are not great art. I just hope that some splashes of color will break up the screen a little. And the fastest way to get art without having to ask permission to use it is to create it myself.)

Federal Civil Practice Bulletin

Interested in federal civil practice? Check out this blog by Prof. A. Benjamin Spencer of the University of Richmond School of Law: Federal Civil Practice Bulletin.

Prof. Spencer also has a blog that watches splits among the federal courts of appeals: Split Circuits. If you're casting about for a paper topic or trying to put together a moot court problem, circuit splits are great.

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ACS Moot Court Champs

Yesterday a UW team won the American Constitution Society's national Constance Baker Motley Moot Court Competition on the topic of felony disfranchisement. Congratulations to Suzanne LiaBraaten and Andrea Schmitt!

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Thursday, June 15, 2006

ATLA: Convention in Seattle

This year's annual meeting of the American Association of Trial Attorneys is in Seattle, Sat. July 15 through Wed. July 19. Take a look at the program and registration information.

Students: law student registration is just $80. (That might seem like a lot, but it's way less than the basic attorney rate of $560. (There are various packages and discounts for different groups of attorneys.) The biggest bargain is the law professor rate: no registration fee at all if the professor is a member of ATLA (and law professor membership is just $35/year)!

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Wednesday, June 14, 2006

Pattern Interrogatories Report

KCBA's Jury & Courts Committee has drafted pattern interrogatories for use in automobile tort cases. Comments are invited by July 15. Pattern Interrogatories Report.

The King County Superior Court adopted local rules (LR26(d)(1) and 33) that limit interrogatories to 40 -- OR approved pattern interrogatories plus 15 more.

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Graphic by mw.

Pioneering Woman Attorney Dies

Kathleen M. Taft, UW class of 1936, died in December.

Kathleen M. Taft, 98, died December 23, 2005, in Spokane. One of the state's longest-lived lawyers, she joined the Bar in 1936 after graduating from the UW Law School. In 1950, she became Spokane County's first family court commissioner, a post she held for 27 years. Taft was mentor to countless judges and lawyers, and her distinguished work in family law was widely and frequently honored. Taft's husband, one-time Spokane mayor and state legislator Willard Taft, died in 1971. Survivors include a number of nieces, nephews, grandnieces and grandnephews, and eight great-grandnieces and nephews. Always looking ahead, Taft worked until a week before suffering a stroke, and only a fortnight before a planned trip to Antarctica -- the only continent she hadn't yet visited.
In Memoriam, Wash. St. B. News, June 2006.

Her name stood out from this months list of attorneys and judges we have lost because I heard about her attending a reunion here recently and saw a profile that made her seem like quite an impressive figure: Heather Lalley, Raising the Bar: Approaching 98, Spokane's Kathleen Taft, Spokesman Review, May 15, 2005. This stood out:
For a time in the '80s, Taft became the go-to attorney in Spokane for lesbians seeking to adopt.

"We showed sympathy for them," she says. "Any of the reports that came in on them were always good. The children did well in school."
As you might have noticed in the newspapers (or in the United States Senate), lesbians forming families can still be controversial today. I wonder what Spokane thought of "Mrs. Taft," then in her 70s, serving these clients so matter of factly.

Here is the Spokesman-Review's obituary (Dec. 23, 2005).

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E-Discovery Rule Changes

The new issue of the Bar News features a cover story on e-discovery: Robert A. Medved, E. Discovery and the Proposed Amendements to the Federal Rules of Civil Procedure: A Primer, Wash. St. B. News, June 2006.

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Mountains of loans are hard for many graduates to face, but especially lawyers working in public service. This year, the Washington State Bar Association inaugurates a Loan Repayment Assistance Plan (LRAP) for five recipients. Each recipient receives a $5000 forgivable loan -- forgiveness contingent on continued qualifying employment.

This year's recipients were from three law schools (Gonzaga, Vermont, and UW). They work for

  • the Associated Counsel for the Accused (Seattle),
  • the Lummi Indian Business Council (Bellingham),
  • the Northwest Immigrant Rights Project (Eastern Washington Office),
  • the Skamania County Prosecutor's Office (Stevenson),
  • the YWCA Domestic Violence Civil Legal Assistance Office (Spokane).
Paula Littlewood, The WSBF Loan Repayment Assistance Program Selects Its First Five Recipients, Wash. St. B. News, June 2006.

Congratulations to the recipients, and thanks to WSBA for establishing the program!

Here at the UW, the Public Interest Law Association (PILA) has been working on an LRAP program as well. At commencement on Sunday, the JD class of 2006 announced its class gift was going toward the LRAP fund. PILA is matching part of the contribution. The class of 1976 also matched this year's class gift.

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Tuesday, June 13, 2006

Summer Reading - Short Stories

The Texas Bar Journal held a short story contest for members of the State Bar of Texas. Stories were required to "deal with or be related to the law or lawyers in some fashion." For a diversion, take a look at some of the State Bar of Texas | 2006 Short Story Finalists.

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Public Defenders - Pay, Caseload, Etc.

I just listened to a podcast from this spring: The Legal Talk Network - Public Defenders, March 30.

Hosts J. Craig Williams and Robert Ambrogi interviewed two public defenders (one in LA and one in Boston) and a researcher who has worked on public defense issues. A few points:

  • Pay varies widely state to state. In California, public defenders have the same pay scale as prosecutors and have the potential for pretty good salaries. Not so in most of the country. In Massachusetts, public defenders start at about $37,000 -- lower than attorneys for any other state agencies.
  • Resources are an issue, apart from salaries. Prosecutors have whole police departments to investigate cases and find witnesses; public defenders often are frustrated by their limited technology and personnel.
  • An anecdote (from the Midwest, I believe): One public defender, moonlighting in another job to get a little extra money, reported that he saw a client twice in one day -- one in court and once in the evening when the lawyer delivered a pizza to the client's home.
  • Caseloads are an issue. Some public defenders are expected to handle so many cases they can't keep one client's case separate from the next one's in their minds.
  • The speakers all agreed that many public defenders do excellent work, despite the low pay and scant resources. The LA attorney said that sometimes a client who is eligible for a public defender gets a private attorney because the family scrapes together the money, assuming that any paid lawyer would be better than a public defender -- but, in fact, the private bar has quite a range of ability and experience. Sometimes that private lawyer does not represent the client as well as the public defender would have. The private lawyer might not have much experience in criminal defense, with no one in the office to train or supervise as a young public defender has.
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ID of Jacket Allowed Despite Suggestive Showup

The trial court excluded a witness's identification of three robbers because it was tained by an impermissibly suggestive showup. But the court allowed the witness to testify about the distinctive jacket one robber was wearing because of his testimony -- at a suppression hearing -- that he remembered the clothing independent of the showup. Division 1 affirmed. "The trial court correctly left it to the jury to determine the weight to be given to [the witness's] testimony identifying the jacket." State v. Johnson, 132 P.3d 767 (Wash. App. April 10, 2006)(Agid, J.), Westlaw.

In an unpublished portion of the case, Division 1 addressed claims that statements in the prosecutor's closing argument were improper. It did find one improper comment -- the prosecutor's comment about her brother and his friends going over a soccer game to suggest that the young robbers must also have talked about their day's activities (i.e., the robbery). But the appellate court was satisfied that the court's limiting instruction ("this is argument, it's not evidence, it's not law") was adequate.

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Graphic by mw.

Who's Hearing Your Appeal?

Most federal courts let attorneys know in advance of argument which judges will be on the panel. However, the 4th, 7th, and Federal Circuits do not. Howard Bashman at discusses the issue: Who's on the Argument Panel: Why Ignorance Isn't Bliss,, April 3, 2006.

Reasons to announce the panels in advance:

  • attorneys can prepare, tailoring their arguments to what they know about the judges' preferences, past opinions, and so on;
  • with advance notice, attorneys who seldom argue in a circuit are at less of a disadvantage to the attorneys who often appear before the circuit's judges;
  • attorneys can also investigate possible grounds to seek recusal.
On the other side, some suggest that lawyers who know which judges they will face will pander to them. In addition, some lawyers might try to get the argument postponed in hopes of getting a panel perceived to be more favorable.

Bashman thinks the advantages far outweigh the disadvantages (which can be addressed in other ways) and encourages courts to disclose.

Here in Washington, the panels are included in the Court of Appeals dockets. When I checked today, I could see the panels for arguments as far out as June 14 (Div. 1), July 10 (Div. 2), June 21 (Div. 3). (For dockets, follow the links here.)

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Jurors Asking Questions

In some courts, jurors may ask questions of witnesses. What should a lawyer do if the other side's expert uses the question as an opportunity to hold forth on a range of topics (some outside his or her expertise)? If the lawyer objects, will the jurors get mad or think they're being deprived information they want to hear? When Jurors Run the Show, N.J.L.J., April 4, 2006 (, discusses the issue, drawing from an example in the recent Vioxx trial in Atlantic City.

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Monday, June 12, 2006

PowerPoint Examples from Plaintiffs' Lawyers

Interested in how other plaintiffs' lawyers are using PowerPoint in the courtroom? A group of lawyers (many are members of ATLA) has assembled disks with examples from a variety of cases (med mal, premises liability, automobile accidents, etc.). Examples include PowerPoint presentations supporting opening statements and closing arguments, as well as ones illustrating different concepts, such as loss of earning capacity.

To get a disk, all you have to do is send in a sample presentation of your own (changing names and details if you want to protect privacy). See details at the South Carolina Trial Law Blog: PowerPoint Examples from Leading Plaintiff's Lawyers.

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Death Penalty News: Child Molestation (Okla), ABA Criticism (Ala.)

Two news items from Jurist about the death penalty in other states:

Oklahoma becomes fifth state to allow executions of repeat child molesters, Jurist - Paper Chase, June 9, 2006.

ABA calls for death penalty moratorium in Alabama, Jurist - Paper Chase, June 9, 2006.

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DC Cir suppresses reports in Interior / Indian trust case

The DC Circuit granted a motion by the Department of the Interior to suppress reports by a former special master in a decade-old class action alleging that Interior has mismanaged Indian trust funds. Federal court suppresses reports alleging US Interior destroyed Indian trust documents, Jurist - Paper Chase, June 10, 2006.

The case is Cobell v. Norton. In 1999, the district court appointed a special master to oversee the exchange of information between Interior and the plaintiff Native Americans. Along the way, the special master hired a data systems consultant who had formerly worked on a project involving the trust funds for Interior. His company's contract had been canceled and the company had moved to join the class action. Since the consultant worked on the special master's reports, the court finds that the special master's impartiality might reasonably be questioned and suppresses the reports. (The special master resigned in 2004.)

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Sunday, June 11, 2006

Issue Analysis Memos

How can you sort out evidence, arguments, strategies, decisions, and issues as you're working on a case? Former trial consultant (now legal software CEO) Greg Krehel suggests using "issue analysis memos". These are working documents that outline and analyze your case -- beginning when the case is just a few notes after your initial intake interview and going on through years of pleadings, depositions, and negotiations. Greg Krehel, Creating & Using Issue Analysis Memos: Part 1, Law Practice Today, June 2006.

Krehel says that as a consultant, he and his partner would ask lawyers to give them background information about the cases for which they were to conduct mock trials or offer suggestions. Very often, the lawyers would give them pleadings -- complaint and answer. The pleadings give part of the picture -- the chief factual allegations, the claims and counterclaims -- but they are inadequate. (1) They don't cover the elements needed to prove each claim. (2) They're frozen in time. (3) They don't reveal the lawyers' evaluations of the evidence and arguments.

You should start an issue analysis memo for each new case as soon as your noodling on the matter begins. It only takes a few minutes to jot down your initial impressions of case issues.

Be sure to trap all possible claims, counterclaims and cross-claims, as well as any arguments that you're already aware could be made about them. In other words, get down the issues all parties are likely to introduce, not just your own.

Use early drafts of the memo to frame the Complaint or Answer, but then keep this analysis document hard at work until the case is resolved by settlement or trial.
The article goes on to offer specific suggestions.

In a sidebar, the editors mention three software programs that can be helpful for creating outlines: NoteMap, BrainStorm, and ActionOutline. (NoteMap is produced by Krehel's firm, CaseSoft.)

Graphic by mw.

Update: Part 2 (July 2006) is here.

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Friday, June 9, 2006

Vast DNA Bank Pits Policing Vs. Privacy

The nation's databank of DNA profiles is getting bigger, thanks in part to laws requiring testing of felons and sometimes misdemeanants or even arrestees. The good news is better crime detection potential; the bad news is invasions of privacy. Some critics are alarmed by an investigatory technique of looking at the relatives of someone in the database whose DNA is similar to the DNA at a crime scene, hoping that the relatives might match. See Vast DNA Bank Pits Policing Vs. Privacy, Wash. Post, June 3, 2006, at A1.

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Samson v. California: the DNA sequels

The Supreme Court will soon clarify whether the state may require DNA samples of individuals who are on parole or probation. See discussion in SCOTUSblog: Samson v. California: the DNA sequels.

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"Trial Lawyer" Branding

Robert Ambrogi comments on law firms promoting themselves as "trial lawyers" (happy to go to court) versus "litigators" (doing all they can to avoid trials). Trial Lawyer = Good; Litigator = Not So Good, - Inside Opinions: Legal Blogs, June 1.

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Rock Paper Scissors

When parties could not agree on a location for a deposition, the federal judge ordered the attorneys to play rock paper scissors and have the winner decide. Read more: The Order Heard 'Round the World ( - Inside Opinions: Legal Blogs).

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Graphic by mw.

What Atty-Client Privilege Doesn't Cover

In some circumstances, an attorney has an obligation to report information, even if it was obtained in the course of representation. Are You Privileged? Don't Be Too Sure When It Comes to Ethics Problems, Law Practice Today, June 2006, discusses two situations:

  • Attorney A learns of misconduct Attorney B. As part of a settlement, A and the client agree not to report B to the disciplinary authorities. Attorney A is later disciplined for not reporting the misconduct.
  • Sarbanes-Oxley requires attorneys to report certain corporate misconduct.

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Authenticating Digital Photographs as Evidence: A Practice Approach Using JPEG Metadata

Digital photos can be altered more easily than film photos. So there are some special considerations when using them as evidence. Here are tips on Authenticating Digital Photographs as Evidence: A Practice Approach Using JPEG Metadata from the ABA's Law Practice Today (June 2006).

Photo: Pterodactyl soaring over the University of Washington's Red Square, April 1, 1998. From UW cambot archive. Used with permission.

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D. Ore. Allows Suit Against Vatican

A federal district judge in Oregon rejected the Vatican's motion to dismiss a case for lack of jurisdiction. The plaintiff, a Seattle-area man, alleges that Holy See is liable for transferring a priest from Ireland to Chicago to Portland, when it knew he had a history of sexual abuse. JURIST - Paper Chase: Vatican loses bid for immunity in Oregon clergy abuse lawsuit. The article links to the plaintiff's complaint (Doe v. Holy See).

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Fixing Deposition Transcripts When Your Questions Are Messed Up

What can you do if the court reporter makes some critical errors transcribing your questions in a deposition? Evan Schaeffer offers some tips: The Illinois Trial Practice Weblog: Fixing Deposition Transcripts When Your Questions Are Messed Up

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Tax Consequences of Confidentiality Clauses in Settlement Agreements

Suppose Acme Widgets settles a case for $100,000, with a confidentiality agreement so word doesn't get out about the problem widget. If Acme would have only paid $60,000 without the confidentiality, then a court could deem the other $40,000 to be consideration for the plaintiff's silence.

Who cares? The plaintiff should. Personal injury awards generally are not taxable as income, but a payment not to talk about one could be. Evan Schaeffer has a couple of posts on this topic, including a few tips about drafting the settlement agreement. The Illinois Trial Practice Weblog: More About the Tax Consequences of Confidentiality Clauses in Settlement Agreements

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Graphic by mw.

Ft. Lawton Convictions to Be Reviewed

Rep. Jim McDermott announced yesterday that the convictions of African American soldiers stemming from a riot at Fort Lawton in 1944 will be reviewed. Congressman Jim McDermott - Speeches - Fort Lawton Breakthrough: "Justice Delayed Is No Longer Justice Denied" McDermott reached an agreement with Rep. Duncan Hunter, the Republican Chairman of the House Armed Services Committee. Under the agreement, the Army Board of Correction of Military Records (ABCMR) has set up a point of contact to review the cases. The four living soldiers and the families of the others can request review -- now, for the first time, including investigatory records that were not available to the defense when they were convicted.

See earlier post about On American Soil, the book that recounts the story of the incident, the investigation, and the trial.

Photo of Rep. McDermott from his House website.

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Thursday, June 8, 2006

Characteristics of Drivers Stopped by Police, 2002

The Bureau of Justice Statistics (part of the Dept of Justice) released a new 12-page report: Characteristics of Drivers Stopped by Police, 2002. The report "provides statistics about various outcomes of traffic stops, including searches conducted by police, tickets issued to drivers stopped for speeding, arrests of stopped drivers, and police use of force during a traffic stop." It "also discusses the relevance of the survey findings to the issue of racial profiling and provides comparative analysis with prior survey findings."

  • 16.8 million drivers were stopped by police in 2002.
  • About 8.7% of drivers age 16 or older were stopped by police.
  • Of young men who were stopped, 11% were physically searched or had their vehicle searched by police. Blacks (22%) and Hispanics (17%) were searched at higher rates than whites (8%).
  • White drivers were more likely than black or Hispanic drivers to be stopped by police for speeding. But, once stopped, blacks (78%) and Hispanics (85%) were more likely than whites (70%) to receive a ticket.
  • About "664,500 people age 16 or older had force used or threatened against them by police at least once during 2002. About a quarter of these force contacts involved a driver during a traffic stop." Most of these were male: police used or threatened to use force against 520,000 males; 31.2% of those were drivers in a traffic stop.
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Graphic by mw.

Monday, June 5, 2006

Abusing Coach Sentenced

On Friday, Christopher Stefanik, the former coach who pleaded guilty in March to 10 counts related to child sexual abuse, was sentenced to 23 years in prison. (The offenses were second-degree child rape, second-degree child molestation, sexual exploitation of a minor, and possessing child pornography.) King County Superior Court Judge Nicole MacInnes sentenced him to the maximum time allowed because of the victims' testimony at the sentencing hearing. The prosecution -- including deputy prosecutor Scott O'Toole (also a Trial Ad instructor) -- had recommended 17 1/2 years. Ex-coach gets 23 years for sex abuse, Seattle Times, June 3, 2006.

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Thursday, June 1, 2006

Prosecutor's Closing Arg Upheld in Child Rape Case

The Washington Supreme Court held that a deputy proseuctor's remarks in rebuttal closing argument did not amount to prejudicial prosecutorial misconduct. State v. McKenzie, --- P.3d --- 2006 WL 1360883 (Wash. May 18, 2006), Westlaw, Washington Courts (majority), Washington Courts (dissent).

The defendant was convicted of three counts of rape of a child in the second degree. The alleged abuse was of his stepdaughter when she was in the sixth and seventh grades.

Moving for a new trial, the defendant

argued that the deputy prosecutor committed prejudicial misconduct by expressing her personal opinion as to [his] guilt, by referring to [him] as a "rapist," and by suggesting that [he] had attempted to buy [the stepdaughter's] silence. [On appeal he added] the claims that the deputy prosecutor had improperly and prejudicially described [him] as "lying" and [the girl] as "innocent."
The Court, in an opinion by Justice Owens, found that the comments were not prejudicial.
  • Terming the defendant a "rapist" was a reasonable inference from the evidence.
  • The word "guilty" was used in response to remarks defense counsel made.
  • "Because both [the defendant] and [the alleged victim's sister] testified that [the alleged victim] had a reputation for untruthfulness and, moreover, because the theory of the defense's case was that [the girl] had made up the allegations so that she could live with her father, the case presented offsetting claims of untruthfulness, entitling the deputy prosecutor to argue from the evidence that [the defendant] himself was lying.
  • "We find the deputy prosecutor's argument that [the defendant] hoped to quiet [the girl] by means of a mediated monetary settlement a weak inference from the evidence; nevertheless, we cannot say that the trial court's decision on this close issue was a clear abuse of discretion. In any event, were we to find the argument improper, we could not conclude that the implication, which drew no objection from defense counsel, was so prejudicial as to warrant a new trial.
  • "in drawing attention to [the girl's] lost innocence, the deputy prosecutor went too far in her effort to exploit defense counsel's theme that [the defendant] had to be content with the phrase 'not guilty,' instead of the word 'innocent.' Although we conclude that the prosecutor's references were improper, we hold that they were not 'so flagrant and ill-intentioned' that their prejudicial effect could not have been cured by the trial court's instruction to the jury."
Justice Sanders dissented, joined by Justices Chambers and Madsen:
The majority concedes the . . . prosecutor's "improper" statements "went too far." . . . Thirteen times, she called [the defendant] a "rapist." Seven times, she called [him] "guilty." Five times, she called [him]a "liar." Four times, she claimed [he] tried to bribe his alleged victim. Seven times, she referred to [the girl's] "innocence." Thirteen times, she gratuitously disparaged witnesses supporting [the defendant]. And twice, she personally vouched for [the alleged victim's] credibility.

But still, the majority denies [him] a new trial. It claims a jury instruction could have "mitigated" the prosecutor's egregious misconduct. . . . I disagree. A criminal defendant is entitled to " 'a fair and impartial trial.' " . . . 826 (1927)). And [the defendant's] trial was neither fair nor impartial. No instruction can cure comments likely to affect the verdict. . . . [He] is entitled to a new trial.
Justice Owens's response to that vigorous opening is in a footnote:
FN2. The dissent opens with its own tabulation of the prosecutor's allegedly improper remarks, but what the dissent neglects to acknowledge is that, assuming these remarks were improper, an objection from defense counsel would have prevented any repetition of the five remarks that [the defendant] has challenged on appeal. As this court has previously acknowledged, the absence of an objection by defense counsel "strongly suggests to a court that the argument or event in question did not appear critically prejudicial to an appellant in the context of the trial."
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White Supremacist's 1st Degree Murder Conviction Aff'd

Today Division 2 affirmed the conviction of a white supremacist for aggravated first degree murder. State v. Monschke, --- P.3d ---, 2006 WL 1492975 (Wash. App. June 1, 2006)(Quinn-Brintnall, J.), Westlaw, Washington Courts.

The charge stemmed from a severe beating of a homeless man on the railroad tracks near the Tacoma Dome in 2003. Three or four assailants were involved (one may have only observed as the others beat the man with baseball bats and a 38-pound rock). The victim died after 20 days on life support. Under a plea agreement, three of them pleaded guilty -- two to first-degree murder and one (the one who was less actively involved) to second-degree murder -- and agreed to testify against the defendant.

The defendant raised a number of issues on appeal, including:

  • White supremacy as a "group." Someone can be found guilty of aggravated first-degree murder if any one of several factors is found. Here, it was:
    "The person committed the murder to obtain or maintain his or her membership or to advance his or her position in the hierarchy of an organization, association, or identifiable group."
    RCW 10.95.020(6). White supremacy doesn't have a formal hierarchy of ranks (like the Boy Scouts, say) or membership dues (like the Elks) or a structured system of job categories (like the federal civil service). Nonetheless, the court found that the defendant's desire to improve his status among people in the movement satisfied the statute.
  • Sufficiency of the evidence. The court was satisfied. (I'll mention here that a lot of cases about criminal procedure, evidence, and trial practice have distressing facts. The court's recital of facts here was particularly disturbing. Not that any murder if nice, but this was brutal.)
  • The court's requirement that the defendant wear a stun belt under his clothes during trial. This was permissible. The judge had witnessed a violent outburst by the defendant and he had been violent in the county jail.
  • White supremacy evidence as impermissible under ER 404(b). The court found no abuse of discretion. It was relevant to motive and intent, and the court instructed the jury appropriately.
  • Expert testimony about white supremacist groups. Also OK.
  • Alleged prosecutorial misconduct. The defendant argued that the prosecutor impermissibly characterized one of the witnesses -- a former co-defendant -- as a nice person who wouldn't do any harm. But the prosecutor had also elicited testimony that she had pleaded guilty to second-degree murder. And, in any event, defense counsel did not object at trial.
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S. Ct. Grants Cert in Ore. Punitive Damages Case

Philip Morris is challenging the Oregon Supreme Court's action upholding an $80 million jury award; the Supreme Court has granted cert. JURIST - Paper Chase: Supreme Court to hear Philip Morris punitive damages appeal. See earlier post.

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New Orleans criminal court reopens nine months after Katrina

JURIST - Paper Chase: New Orleans criminal court reopens nine months after Katrina. The Louisiana criminal justice system was never a paragon of efficiency and fairness, and the devastation of Katrina really had a huge impact. The court has a backlong of 5,000 cases.

When the Innocence Project conference was here, I heard a panel of speakers from Innocence Project New Orleans. It's overwhelming. One example: evidence rooms in the basement of the criminal courts building were totally flooded. One of the IPNO attorneys got an order to inspect and was allowed in with a mold specialist from Tulane -- wearing haz-mat suits.

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