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

Class Action Stats

CAFA, the Class Action Fairness Act, took effect Feb. 18, 2005. What's it done? Has it shifted class actions from state to federal courts, as it proponents hoped? Tom Willging (Senior Researcher, Federal Judicial Center) comments on the FJC's first study: More on FJC’s CAFA Data and the “September Surprise”, Consumer Law & Policy blog, Oct. 24, 2006.

He also cites a study that examined whether it made much difference to be in federal or state court: Thomas E. Willging & Shannon R. Wheatman, Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make?, 81 Notre Dame Law Review 591 (2006).

Filed in: class-actions, empirical-studies, Class-Action-Fairness-Act, legislation, Willging, Wheatman, Federal-Judicial-Center, Consumer-Law-&-Policy

7th Cir. Class Action Case

The Seventh Circuit recently rejected a class action settlement on fairness grounds. Scott Nelson at the Consumer Law & Policy Blog comments: CL&P Blog: Seventh Circuit Takes Hard Look at "Coupon" Settlements, Citing CAFA, Oct. 25, 2006.

Filed in: class-actions, Class-Action-Fairness-Act, settlements, Nelson, Consumer-Law-&-Policy

ADR and the Tuna Court

Richard Alderman at the Consumer Law & Policy Blog muses about possible alternative dispute resolution mechanisms for consumer disputes. CL&P Blog: Real ADR, Oct. 26. He is intrigued by a law review article about Tokyo's special court for disputes between tuna merchants: Eric Feldman, The Tuna Court: Law and Norms in the World's Premier Fish Market, 94 Cal. L. Rev. 313 (2006).

Filed in: alternative-dispute-resolution, ADR, Alderman, Consumer-Law-&-Policy, Feldman, Tuna-Court, Japan

UofO DV Clinic Grant

The Lane County Domestic Violence Clinic in Eugene, OR, has received a $250,000 grant from the Dept of Justice's Legal Assistance to Victims Program. The grant will fund about half the clinic's operations through 2008. The clinic is a joint project of the University of Oregon School of Law, the Lane County Legal Aid and Advocacy Center, WomenSpace and Sexual Assault Support Services. Press release: UONews 10.02.06 Domestic Violence Clinic grant UO Law School.

Thanks: Brennan Center Elerts.

Filed in: clinics, domestic-violence, U-of-Oregon, Justice-Department, Brennan-Center

Funds for Clients Burned by Lawyers

"In fiscal year 2006, the Lawyers' Fund for Client Protection (Fund) of the Washington State Bar Association (WSBA) made gifts totaling nearly $468,700 to 65 applicants who were the victims of either dishonest conduct or failure to account for client funds by 26 lawyers." Press release, Oct. 13, 2006.

This year, individual gifts from the Fund ranged from a few hundred dollars to $75,000. The majority of these applications concerned unearned fees paid to lawyers who abandoned their practice, or who failed to perform the services for which they were employed, and who failed to refund advanced fees and costs. A smaller number of the applications involved outright theft or conversion of client funds for the lawyer's own purposes. Areas of practice involved included family law (dissolutions, child support, and paternity actions), probate and trusts, personal injury, criminal law, and others.

The Fund is financed by members of the bar; it does not use any tax dollars.Id. Each active lawyer pays $13/year; the Fund also received interest income and collects some money from lawyers as restitution.

More information is in the Lawyers' Fund for Client Protection's (Sept. 2006).Annual Report. A table (p. 2) shows, for each year since 1988, how many applications were received by the Fund, how many were approved, how many lawyers were approved (i.e., found to have behaved so badly that their clients were entitled to funds), and the amount paid. We can also contrast the number of applications with the number of active bar members. So, while it's dismaying that there was need to pay out $468,695 last year at all, I'm impressed that there were only 139 applications for funds when WSBA has over 26,000 active members. The successful claims involved 26 lawyers -- a tidy .1%

The annual report describes two programs designed to prevent loss in the first place: random audits of lawyers' trust accounts and a requirement that banks report to WSBA any overdrafts on trust accounts. Pages 8-36 of the annual report give summaries of the successful applications -- short, cautionary tales about how not to run your practice.

Oct. 30 postscript: By the way, one of the lawyers whose former clients the fund paid was William Joice, who was convicted in December of shooting Kevin Jung, a rival attorney. See posts: conviction, sentencting, another note on sentencing, and Jung's death.

Filed in: WSBA, Lawyers'-Fund-for-Client-Protection, ethics, practice-of-law, Joice, Jung

Public Citizen Report on Doctor Disciplinary Info on State Med. Bd. Sites

Each state has its own medical board that monitors and disciplines doctors. How well do they share their information with the public? Performance is very uneven nationally, and nowhere is it as good as Public Citizen would like it to be. See Public Citizen's press release: New Jersey Ranks First, North Dakota Ranks Last for Doctor Disciplinary Information on State Medical Board Web Sites, Oct. 17, 2006. The full report is: 2006 Report of Doctor Disciplinary Information on State Web Sites: A Survey and Ranking of State Medical and Osteopathic Board Web Sites(HRG Publication#1791) (Oct. 17, 2006). It's here in PDF.

A web form lets you look at your state's scores. Washington's two boards -- the State Medical Quality Assurance Commission and the State Board of Osteopathic Medicine and Surgery -- were tied for 42nd out of 65 boards reviewed.

Thanks: beSpacific.

Filed in: doctors, medical-boards, Public-Citizen, beSpacific

Continuing Effects of Criminal Records

Even when a criminal record is sealed or expunged, it can still have an effect on the individual. How? The court could have sold records to database providers who never updated them to reflect the sealing or expungement. A recent article in the New York Times (Criminal Records Erased by Courts Live to Tell Tales, Oct. 17, 2006, at A1) explains how people's lives can be dramatically affected for decades, making it difficult or impossible for them to get jobs, housing, or credit.

We're not talking about the proverbial ax-murderer you don't want next door. An example in the article is a man, now in his 30s, who was convicted of disorderly conduct more than a decade ago. In New York, that offense is treated like a traffic infraction, so he didn't report it on a job application. A database provider told the employer he'd been convicted of a misdemeanor and he was denied the job. He is now suing.

The issue is discussed in a couple of interesting blog posts:

• Thought That Record Was Sealed? Not Quite, PrawfsBlawg, Oct. 17, 2006.
• Michael Pinard, The Expungement Mess, Oct. 25, 2006. Also recommended: Pinard's other posts about the collateral consequences of convictions.

Filed in: criminal-law, expungement, sealed-records, Pinard, PrawfsBlawg, Blackprof.com

DNA Tests for Family Immigrants

The Washington Post reports that DNA tests are increasingly being used in immigration cases. Sometimes they are helpful for people who want to sponsor relatives but cannot produce paperwork to show the family relationship. At other times, though, they have been required by the U.S. even when the prospective immigrants' birth certificates and other documents are in order, showing a close relationship to the U.S. citizen or permanent resident who wants to sponsor them. In those cases, the tests add to the cost and time necessary for the visa application. DNA Testing A Mixed Bag For Immigrants, Wash. Post, Oct. 25, 2006, at A1.

Filed in: DNA, immigration

Judge Sanctions Lawyer for Dramatic "Lord..."

After clashing with him several times, a North Carolina judge sentenced a defense attorney to 2 days in jail, 70 hours of community service, and temporary loss of his license to practice and ordered him to submit to a psychological examination. N.C. Lawyer Ordered to Take Psych Exam After Courtroom UtteranceAP, Law.com, Oct. 23, 2006.

The outburst reported in the AP story: After the judge stopped the attorney's questioning, the attorney "said 'Lord,' reared back in his chair with outstretched arms, cast his eyes upward and turned to the audience.'" The attorney, who is also a minister, "said the remark was the beginning of a prayer. He apologized to [the judge] and said he did not intend to be disrespectful or for his remark to be heard by others."

A little more about the incident is in Man gets 75 days for assaulting officer; His attorney also faces hearing for possible contempt during trial, Winston-Salem J., Oct. 11, 2006.

Filed in: sanctions, judges, contempt

Karate Student Assumed Risk

A New York woman whose nose was broken by a classmate's punch to her face during a sparring match sued her karate school, the teacher, and the classmate. The trial judge dismissed the case against the school and the teacher, saying that she had assumed the risk -- rejecting her argument that since striking the face is not allowed in sparring, she had not assumed that risk. The judge said that there was still an issue of fact as to the classmate who hit her did so intentionally. Claims Against Karate School Over Broken Nose Dismissed, N.Y.L.J., Oct. 25, 2006, Law.com.

Filed in: torts, sports, assumption-of-risk, karate

SCOTUSblog Podcasts

SCOTUSblog, hosted by DC’s Akin Gump Straus Hauer & Feld, covers the Supreme Court – cases granted and denied cert, oral arguments, decisions, commentary, and more.

Recently, SCOTUSblog has added podcasts. So far, there have been two interviews with journalists who cover the Court -- Linda Greenhouse and Nina Totenberg. Three podcasts are practice pointers by experienced attorneys -– on writing and responding to cert. petitions.

Filed in: SCOTUSblog, cool-websites, podcasts, Greenhouse, Totenberg

Blogging a Cape Cod Murder Trial

A murder trial in Cape Cod has captured a lot of public attention. The victim (Christa Worthington) was a fashion writer (Vogue, Elle, et al.) who had a child fathered by a local married man; the accused (Christopher McCowen) was her garbage collector. Court TV has extensive coverage. And for day-by-day accounts, you can visit the Christopher McCowen Murder Trial Blog hosted by the Cape Cod Times and written by reporter Eric Williams. Here you can find details about examination, cross-examination, and so on. You can also get glimpses of Mr. Williams’s life as a journalist:

I have been working out of my car for ten days now.

It is filled with banana peels, cigar butts and coffee cups.

I have also exhausted my supply of dark socks for court.

This morning around 6:30, I ripped through the heel of my last clean pair, necessitating a hands and knees search in the dark, which eventually produced hosiery of questionable vintage.

Post from 9:10 this morning. What would the international fashion writer have said about that?

Thanks: Legal Blog Watch.

Graphic by mw.

Filed in: murder, Worthington, McCowen, Court-TV, blogs, Williams, Legal-Blog-Watch

News Items from Jurist

Jurist is a great site that, among other things, summarizes legal news items on a wide variety of topics from around the world. News items are written by law student staffers at the University of Pittsburgh. They include links to newspapers, wire services, agency websites, pleadings, press releases, and other materials related to the stories.

Here are a dozen interesting items from the last couple of weeks. I could use any one of them as the start of a post here, but instead I'll just list the headlines and let you click for more.

• US citizen 'exiled' to Canada under sexual assault plea bargain, Jurist Paper Chase, Oct. 23, 2006.
• Federal judge hears arguments on Hinckley overnight visits, Jurist Paper Chase, Oct. 23, 2006.
• California prisoner transfers to private out-of-state facilities to begin in November, Jurist Paper Chase, Oct. 22, 2006.
• Gonzales insists terror suspects face fair trials under Military Commissions Act, Oct. 19, 2006.
• Music industry sues 8,000 worldwide for illegal file-sharing, Jurist Paper Chase, Oct. 17, 2006.
• Civil rights lawyer Lynne Stewart gets 28-month sentence for helping terror client, Jurist Paper Chase, Oct. 16, 2006.
• Scalia defends constitutional approach in debate with ACLU president, Jurist Paper Chase, Oct. 16, 2006.
• Florida court refuses to block violent video game release, Jurist Paper Chase, Oct. 14, 2006.
• Five US states allow attack dogs in prisons: HRW report, Jurist Paper Chase, Oct. 12, 2006.
• Federal judge rules Kentucky judges can solicit campaign funds, Jurist Paper Chase, Oct. 12, 2006.
• Supreme Court asked to hold California sentencing rules unconstitutional, Jurist Paper Chase, Oct. 11, 2006.
• Supreme Court hears indictment harmless error case, Jurist Paper Chase, Oct. 10, 2006.
  

Filed in: Jurist, cool-website, immigration, plea-bargains, Hinckley, prisoners, military-commissions, music, Stewart, terrorism, Scalia, ACLU, Strossen, judges, sentencing, harmless-error, indictments, SupremeCourt

Schierman Time Extended

Judge Gregory Canova granted an extension to Conner Schierman, the man accused of killing two women and two children and burning their house to hide his crimes. His attorneys now have until Jan. 19 to compile information to persuade Prosecuting Attorney Norm Maleng not to seek the death penalty.

Senior Deputy Prosecuting Attorney Scott O'Toole argued against the extension, saying he worried about "limitless delay" in getting the case to trial.

Judge Gregory Canova, however, said the time frame is reasonable given the complexity of the case.

Schierman's lawyers have new deadline, Seattle Times, Oct. 21, 2006.

UW note: O'Toole is a Trial Ad instructor.

Filed in: Schierman, death-penalty, Canova, O'Toole, UW

Jury Duty: Why Such a Drag?

Carolyn Elefant discusses a recent Christian Science Monitor reporting on on the state of jury service. Many jurisdictions have very high no-show rates -- 20% nationally and up to 90% in Miami. What can be done? Shorter service requirments (one-day trials), pleasanter jury assembly rooms, ...? Elefant remarks that when she handled court-appointed criminal work in DC, she "was always surprised" by "the aversion that other lawyers had to serving on a jury." Why wouldn't a lawyer want to serve? "I can't think of better CLE than that." Making Jury Duty More Appealing, Legal Blog Watch, Oct. 18, 2006.

Filed in: juries, Elefant

The Tortellini -- New Blog

The Tortellini is a new blog about tort reform by Stephanie Mencimer, who writes:

This new blog on law and politics is a companion to my forthcoming book, Blocking the Courthouse Door: How the Republican Party and its Corporate Allies are Taking Away Your Right to Sue.

“Tort reform” has become a staple of Republican politics. Limits on lawsuits are offered as a solution to everything from the health care crisis and economic stagnation to America's moral decline. Americans overwhelmingly believe that the nation is awash in frivolous lawsuits.

And that's just where The Tortellini comes in. Because most of what you’ve heard about “lawsuit abuse” is wrong. The majority sentiment on legal reform comes courtesy of a long disinformation campaign by the U.S. Chamber of Commerce and other big business sponsors like the tobacco, insurance and automobile industries. These folks have managed to convince voters from to Hawaii to Maine that plaintiffs in civil actions are whiners, hustlers, and layabouts, and that their attempts to win the “lawsuit lottery” have created a “litigation explosion.”

The truth, as The Tortellini will attest, is more complex. The number of personal injury filings are falling, not rising, according to sober government data, median awards are falling, and plaintiffs are taking it on the chin, in everything from medical malpractice to products liabilty lawsuits.

With daily posts, original reporting, useful stats, and other features, The Tortellini will give you the skinny on the latest in the fight for the courthouse: from legislative proposals and court decisions, to the clever tactics companies are employing to minimize legal exposure. Not to mention gossip!

The Tortellini: Welcome to the Tortellini, Oct. 17, 2006.

Photo from Italian Government Tourist Board - North America.

Filed in: Tortellini, blogs, tort-reform, books, Mencimer

Plain Language Forms Make a Difference

A recent study concludes that plain language court forms make a big difference in how well laypeople can understand and use them. See my post on shlep: the Self-Help Law ExPress Plain Language Forms Make a Difference.

Filed in: plain-language, forms, access-to-justice, shlep, empirical-studies

Empirical Studies of Legal Profession

The editors of the North Carolina Law Review put together a fascinating symposium: Empirical Studies of the Legal Profession: What Do We Know About Lawyers' Lives?, vol. 84, no. 5, June 2006. All of the papers -- by lawyers, sociologists, economists, and others -- are available in PDF. My eye was caught by:

• Laura Beth Nielsen and Catherine R. Albiston, The Organization of Public Interest Practice: 1975-2004, 84 N.C. L. Rev. 1591-1621 (2006). Themes: bigger organizations, less emphasis on litigation, greater variety in the privately-funded public interest organizations.
• Richard L. Abel, Practicing Immigration Law in Filene's Basement, 84 N.C. L. Rev. 1449-1500 (2006) "The most common client complaint [in disciplinary cases] is neglect. Through a case study of the representation of Chinese immigrants before the Immigration Court in New York, I seek to explain how and why the neglect occurred and what we might do to prevent it."
• George P. Baker and Rachel Parkin, The Changing Structure of the Legal Services Industry and the Careers of Lawyers, 84 N.C. L. Rev. 1635-1682 (2006). The abstract summarizes:

  We find evidence consistent with a shift toward a commodity relationship and an increased reliance on business-getting. Specifically, we find some evidence of a disappearance of the midsized firm and strong evidence of a rise in the largest firms and multi-office firms. We find that leverage is increasing, though mostly in the smaller and midsized firms. We find that promotion clocks are increasingly longer and that firms are lessening their use of “up-or-out” promotion policies.

Filed in: empirical-studies, practice-of-law, Nielson, Albiston, Abel, Baker, Parkin, public-interest, immigration

Rock 'n' Roll Judges

Maybe you don't have to be a weatherman to know which way the wind is blowing, but when a judge quotes Bob Dylan, it's a good guess the judge is a Baby Boomer. A law professor has done a study of popular-music references in judicial opinions and law review articles and finds Dylan is the most often cited, followed by the Beatles, Bruce Springsteen, and Paul Simon. Alex B. Long, [Insert Song Lyrics Here]: The Uses and Misuses of Popular Music Lyrics in Legal Writing, 2006 ExpressO Preprint Series Paper 1609.

This evening's edition of "On the Media" had an interview with Prof. Long, accompanying his quotations from judicial opinions with the original tunes by the Clash, the Beatles, Pink Floyd, and, of course, Dylan. You can listen or download the show.

Filed in: Long, judges, music, lyrics, empirical-studies

Reasons to Seal Court Files

Why should courts ever seal files? Doesn't the public have a right to know? In response to the Seattle Times's series, "Your Courts, Their Secrets," Judge Michael J. Trickey last spring wrote an explanation of reasons that files are sealed and explained the court's process. Judge Trickey is the Presiding Judge of the King County Superior Court. Sealing files: not a simple call, March 24, 2006.

Filed in: sealed-records, Trickey

Do Strip Clubs Attract Crime?

A Seattle ordinance (Ordinance No. 121952, Oct. 3, 2005) imposes restrictions on strip clubs. Three clubs are working for Referendum 1, which would undo the ordinance. On Friday they released a study by UC Santa Barbara professor Daniel Linz that found that strip clubs occasioned fewer calls to police than some nearby bars and other businesses. (Strip clubs do not serve alcohol.) The Seattle Times: Local News: Study contends strip clubs aren't a magnet for crimes, Seattle Times, Oct. 14, 2006.

Dr. Linz, a psychologist whose appointments are in the Department of Communication and the Law and Society Program, has done work "empirically testing assumptions made by the law and legal actors in the area of the First Amendment. His research spans the topics of media violence, pornography and sexual depictions and pretrial publicity, news and race." Earlier studies related to the strip club controversy are:

• Linz, D., Land, K., Williams, J. Ezell, M. & Paul, B. (2004). An Examination of the Assumption that Adult businesses are Associted with Crime in Surrounding Areas: A Secondary Effects Study in Charlotte, North Carolina. Law and Society Review.
• Paul, B., Linz, D. & Shafer, B.J. (2001). Government regulation of "adult" businesses through zoning and anti-nudity ordinances: Debunking the legal myth of negative secondary effects. Communication Law and Policy, 6. 2, 355-391.
• Linz, D., Blumenthal, E., Donnerstein, E., Kunkel, D. Shafer, B.J. & Lichtenstein, A. (2000). Testing Legal Assumptions Regarding the Effects of Dancer Nudity and Proximity to Patron on Erotic Expression. Law and Human Behavior, 24, 5, 507-533.
• Robert Bruce McLaughlin, Daniel G. Linz, & Mike Yao, Summarizing and Evaluating Studies and Reports that Examine Whether Adult Businesses Cause Adverse Secondary Effects (prepared on behalf of the Association of Club Executives (ACE) and the Free Speech Coalition) (no date (that I found), but the latest studies summarized seem to be from 2004).

Filed in: strip-clubs, crime, empirical-studies, Linz, Seattle

Understandable Jury Instructions

Jury instructions are important - they tell jurors what they're supposed to decide. But many of them are opaque and convoluted.

The typical circumstantial-evidence instruction tends to sound like something written by a German philosopher two centuries ago and then translated word word into English. How many people today talk about “presenting evidence to the senses?” Is that what you do when you smell a rose or, for that matter, when you see someone rob a bank? Also, most people don’t talk much about “drawing inferences,” even though they do so every day.

Peter M. Tiersma, Communicating with Jurors: How to Draft More Understandable Jury Instructions, National Center for State Courts, Williamsburg, VA, 2006 [originally published in 10 Scribes J. Legal Writing 1 (2005–2006)].

Peter Tiersma, who is both a law professor and a linguist, offers suggestions for writing jury instructions in language that is more easily understood (without being inappropriately casual). He illustrates his suggestions by contrasting old model instructions in California (BAJI) with new ones adopted in 2003 (CAJI).

For example, compare the old:

Evidence consists of testimony, writings, material objects or other things presented to the senses and offered to prove whether a fact exists or does not exist.

Evidence is either direct or circumstantial.

Direct evidence is evidence that directly proves a fact. It is evidence which by itself, if found to be true, establishes that fact.

Circumstantial evidence is evidence that, if found to be true, proves a fact from which an inference of the existence of another fact may be drawn.

A factual inference is a deduction that may logically and reasonably be drawn from one or more facts established by the evidence.

It is not necessary that facts be proved by direct evidence. They may be proved also by circumstantial evidence or by a combination of direct and circumstantial evidence. Both direct and circumstantial evidence are acceptable as a means of proof. Neither is entitled to any greater weight than the other.

* * *

with the new:

Evidence can come in many forms. It can be testimony about what someone saw or heard or smelled. It can be an exhibit admitted into evidence. It can be someone’s opinion.

Some evidence proves a fact directly, such as testimony of a witness who saw a jet plane flying across the sky. Some evidence proves a fact indirectly, such as testimony of a witness who saw only the white trail that jet planes often leave. This indirect evidence is sometimes referred to as “circumstantial evidence.” In either instance, the witness’s testimony is evidence that a jet plane flew across the sky.

As far as the law is concerned, it makes no difference whether evidence is direct or indirect. You may choose to believe or disbelieve either kind. Whether it is direct or indirect, you should give every piece of evidence whatever weight you think it deserves.

(All three quotations are from pp. 20-21 of the NCSC booklet.)

Check this out -- it has lots of good tips for effective communication. (The tips can be applied in other contexts, such as writing client letters. And there's no reason not to write clearly even when the intended audience is lawyers and judges who could wade through the legal complexities if they had to. Why make them?)

Filed in: tips, jury-instructions, Tiersma, writing, NCSC

Economic Analysis of Litigators' Optimism

During settlement negotiations, many litigators are very optimistic about their chances at trial. Why? Oren Bar-Gill uses economic game theory to look at the question. Oren Bar-Gill, The Evolution and Persistence of Optimism in Litigation, 22 J.L. Econ. & Org. 490-507 (2006), Westlaw.

The adaptive force of optimism derives from its function as a commitment device in the pretrial bargaining stage. Optimistic lawyers, by credibly threatening to resort to costly litigation, succeed in extracting more favorable settlements. Therefore, market-selection forces and cultural transmission dynamics dictate an equilibrium with a positive level of optimism.

It seems to me that litigation in this sense is like other confrontations: you probably don't show up for a duel unless you think you've got a good chance of winning, and you don't challenge someone to tennis if you think you'll be humiliated in defeat.

Filed in: Bar-Gill, economics, psychology

How to Be a Witness

How can you prepare your clients and witnesses for the experience of going to court? Here is a sheet with some basics: When Witnesses and Victims Go to Court.

It's adapted from the a document by the California AG's office by Transcend, a company that, among other things, produced plain-English versions of documents. Bonus: Transcend also also produced versions in Spanish and Chinese.

Filed in: witnesses, tips

Firm Liable in Class Action (Old News)

Last spring, a jury in Maine ordered a law firm $10.8 million to companies it had represented:

The jury unanimously found that the Seattle firm, now called Hagens Berman Sobol Shapiro, violated its duty of loyalty to the water bottlers, which it had represented in a fight against Nestle Waters North America. Attorneys for the bottlers said the firm dumped the bottlers to pursue a more lucrative class-action case.

Seattle law firm told to pay $10.8 million, Seattle P-I, March 24, 2006. A week later the firm settled with the companies.
Firm settles with bottlers, Seattle P-I, April 1, 2006.

Portland lawyer Lee Bals, who represented Tear of Clouds, said the case received national attention and could change the way lawyers in class-action cases handle their clients.

"I think the legacy of this case will be that you will never see lawyers in a class-action case attempt to represent both a class and individuals or companies that are not members of the class," he said.

I missed this when it was fresh news, probably because I was out of town for spring break. (Missing a big story: another casualty of March Madness.) I came across it today and thought I'd share it because it's so big.

Filed in: practice-of-law, Hagens-Berman-Sobol-Shapiro, class-actions, conflict-of-interest, settlements

ATLA's Tuesday Litigation Tips

Each Tuesday, ATLA (a/k/a American Association for Justice) highlights a litigation tip on its website, drawn from various ATLA publications. This week's tip is "Be Yourself with Jurors." Other recent tips discuss using demonstrative evidence, convincing jurors a case is not frivolous, and client selection. ATLA - Association of Trial Lawyers of America: Tuesday's Focus.

Thanks: Bill Pryme-Fuld.

Filed in: tips, atla, American-Association-for-Justice, Pryme-Fuld

Another Circuit? Two More?

The Ninth Circuit is the largest federal circuit, and proposals have circulated for years to split it. This morning's Seattle Times has an op-ed piece by two people who oppose a split. They're in a position to be affected: they're Robert S. Lasnik, the Chief Judge of the Western District of Washington, and Robert H. Whaley, the Chief Judge of the Eastern District of Washington. Northwest doesn't need its own federal court circuit, Seattle Times, Oct. 13, 2006.

For the other side, see the Times's own editorial, A Pacific Northwest federal appeals court, Oct. 2, 2006. The editorial cites Ninth Circuit Judge Richard Tallman, who reports having to spend an inordinate amount of time traveling in the current, spread-out circuit.

The circuits are not immutable. In my memory (1981), the Eleventh Circuit was carved out of the Fifth Circuit. The previous split was in 1929, when the Tenth Circuit was carved out of the Eighth Circuit. (A convenient place to find the history of federal courts -- when they were established, how many judgeships they have, and so on, is on the Federal Judicial Center's Courts of the Federal Judiciary page.)

Filed in: court-system, judges, Lasnik, Whaley, Tallman, Federal-Judicial-Center

WSBA to Be Amicus to Ms. King?

WSBA's Amicus Curiae Brief Committee is considering a request for WSBA to appear as amicus in a case pending in Division I. Notice.

At issue in the case, In re Marriage of King, is whether Ms. King had a right to be represented by legal counsel at the trial at which she lost primary residential care of and decision-making power over the children she had with her former husband. (A right to counsel in civil cases is often known as "civil Gideon," since it would extend Gideon v. Wainwright right to counsel in criminal cases to civil contexts.)

Comments -- welcome from any person or group -- are due to the committee by Nov. 7.

Update: This was on the Board of Governors' agenda for its Dec. 8-9 meeting.

WSBA LRAP Applications

Applications for the Washington State Bar Association's Loan Repayment Assistance Program are due by Nov. 1. This cycle is for people who are members of the bar or will be by Nov. 1, 2007.

Who qualifies? Basically: Attorneys working full time for legal services, state or local government, or nonprofit legal services organizations, whose income is less than $50,500/year and debt is over $25,000. WSBA hopes to be able to fund five awards.

Filed in: WSBA, LRAP

Congratulations to Bar Passers!

Congratulations to the 717 people who passed the Washington State Bar Exam. And to the 156 who didn't: good luck next time, and remember that many successful attorneys have had to take a bar exam more than once.* WSBA press release, Oct. 6, 2006 (links to list of passers).

* I don't have an article listing notable lawyers in Washington who had to re-take the exam, but I've known good people who did. You can read about a lot of California stars who failed on their first tries: A High Bar for Lawyers, L.A. Times, Feb. 21, 2006.

Filed in: bar-admission, bar-exams, WSBA

Prawfs' Research Canons Project

The law professors at PrawfsBlawg have started a project they call "research canons." This is an attempt to gather recommendations of the important works in different legal fields that a scholar working in the area should be aware of. PrawfsBlawg: Research Canons.

Some readers of Trial Ad Notes might find the discussion too academic, but others might be interested in the landmark law review articles and books in their fields. See, e.g., Civil Procedure, Criminal Law, Criminal Procedure, Evidence.

This reminds me of an interesting project by Fred Shapiro, in which he figured out which works were cited most often in U.S. law reviews. His article, listing the most-cited legal books, most-cited treatises and texts, most cited British books, and most-cited nonlegal books, is Fred R. Shapiro, The Most-Cited Legal Books Published Since 1978, 29 J. Legal Stud. 397 (2000). Our library has a guide with the lists and our call numbers here.

Filed in: PrawfsBlawg, blogs, Shapiro, empirical-studies

Coe's Commitment Hearing; Coe's First Judge

Judge Kathleen O'Connor (Spokane County Superior Court) has agreed to delay Kevin Coe's commitment hearing to Dec. 18, to provide the defense more time to review the thousands of pages of documents in the case. Judge postpones Kevin Coe commitment hearing, Seattle P-I, Oct. 11, 2006.

UW note: One of the state's attorneys in the commitment proceeding is Todd Bowers, a Trial Ad instructor.

Also in Spokane this week, retired Judge George Shields died from complications of surgery at age 78. He was a judge for 24 years, first on the Spokane County Superior Court (1969-88) and then the Washington State Court of Appeals (Div. 3)(1988-93).

One of his most visible cases as a superior court judge was Coe's first trial for several of the rapes attributed to the "South Hill Rapist." After Coe's conviction, his mother, Ruth Coe, attempted to hire a hit man to kill Judge Shields and the prosecutor. Someone she asked for help in finding a hit man contacted the police. The man she negotiated with was actually an undercover police officer and her conversation was recorded, so she was convicted herself. Retired Spokane County Judge George Shields dies, Seattle P-I, Oct. 11, 2006.

Filed in: Coe, civil-commitment, O'Connor, Spokane, Bowers, UW, judges, Shields, obituaries

Charges Dropped in Luring Case

King County prosecutors withdrew charges against a man arrested for luring and indecent exposure. An 11-year-old girl reported an incident with a man in a white van, and police focused on this Robert Powell. Now, four months later, they have another suspect and believe Powell to be innocent. Wrong arrest in luring case, Seattle P-I, Oct. 11, 2006.

"Knowing what we know now, we would have not charged" Powell, said Mark Larson, chief criminal deputy for the Prosecutor's Office. "We regret having charged him."

Powell is considering a civil suit.

Students Who Are Sex Offenders

What happens when a registered sex offender is of school age? A new law requires the sheriff's office to notify the principal. The principal must notify teachers of level 2 and 3 sex offenders. If there's a sex offender student, schools will know, Seattle P-I, Sept. 18, 2006.

UW note: The article quotes Prof. Kimberly Ambrose of the Children and Youth Advocacy Clinic.

Prosecutor-Novelist Has Conflict

A prosecutor in California published a crime novel about a rape-by-intoxication case this year. Now there's a case with similar facts and the defense says: hey, wait a minute. The California Court of Appeal agrees:

"She has a disabling conflict of interest,” Justice Kenneth R. Yegan [wrote] * * *

* * *

Justice Yegan wrote that Ms. Dudley’s desire for money and fame might tempt her to throw the book at the defendant, as it were.

“Dudley will garner no laurels, and the case will not generate favorable media publicity for her book,” Justice Yegan wrote, “if she enters into a negotiated settlement.”

California Prosecutor's Novel Gets Her Bumped From a Case, N.Y. Times, Oct. 9, 2006.

The case, Haraguchi v. Superior Court (Cal. App. Oct. 5, 2006) is here.

Thanks: Maureen Howard.

Employment Law - Religious Employers

Maureen Howard forwarded me this article discussing employment actions against religious employers: Where Faith Abides, Employees Have Few Rights, N.Y. Times, Oct. 9, 2006.

Trial Graphics Tips

Check out Trial Graphics in Insurance-Coverage Cases: Advocacy with Data and Pictures from Insurance Scrawl, Oct. 8, 2006. Marc Mayerson discusses 5 tips:

1. Trial graphics should be color-blind neutral.

2. The graphics should have a consistent look-and-feel and iconography.

3. Maximize the amount of data relative to the ink used in its graphical analogue.

4. Everything on the graphic must point to the information/advocacy objective of creating the graphic in the first place, or don’t waste an opportunity to have each element of the graphic serve an information-conveying function.

5. Follow Tufte’s lead:
a. Above all else show the data
b. Maximize the data-ink ratio
[This Tip #5 goes up to subpart s, so it's really 20 tips, in a way.]

That first tip is timely for me. Just last week I was training someone and pointed out how our email system's icon on the task bar turns from green to red when we have a new message in the inbox. As it turns out, this is a useful feature for me, but pointless for him, since he's red-green color-blind.

Like many who think about graphic-design, Mayerson is a fan of Edward Tufte.

Unfortunately, this post about using graphics is all text. I'd love to see examples of graphics Mayerson has found effective in trial.

Thanks: Robert Ambrogi, Inside Opinions, Oct. 9.

Blogging Jurors

What will be the effect of jurors who blog about their experiences? Recently, the New Hampshire Supreme Court case (State v. Goupil) upheld a conviction over a defendant's claim that he was denied a fair trial "because his jury foreman turned out to be a blogger who complained about having to show up for jury duty to deal with the local 'riffraff.'" Molly McDonough, Blogger's Posts Don't Equal Juror Misconduct, ABA Journal eReport, Oct. 6, 2006.

The article touches on some interesting issues. (1) The New Hampshire court took the juror's word that he could set aside any bias and had followed the court instructions once the trial started. Can you always believe such statements? (2) Voir dire -- should lawyers start checking to see if jurors are going to blog about the trial? (3) Publicity -- if a blog is read widely will it affect a trial just as news coverage does? Or worse?

The article links to a post giving a juror's perspective of an assault trial in Chicago. This post, by software developer Mark Draughn (a/k/a/ Windy Pundit) is the first of four, going through voir dire, opening statements, testimony, closing arguments, and deliberations. These long posts are well worth reading. See Jury Duty, Day 1: Vwar Deer, Windy Pundit, Sept. 25, 2006 -- and follow the link at the bottom to the next post, and from there to the next.

For Draughn's full jury experience, you can read his thoughts about being a self-employed person called to serve, going through the security checkpoint, trying to find Diet Coke, and more: Jury Duty (Sept. 17) and Jury Duty (continued) (Sept. 18, 2006). See also his post about being in the ABA article (Oct. 6).

Thanks: Public Defender Stuff.

New Orleans judge releases four inmates stuck in Katrina trial backlog

JURIST - Paper Chase: New Orleans judge releases four inmates stuck in Katrina trial backlog, Jurist - Paper Chase, Oct. 7, 2006:

New Orleans Parish Criminal District Court [official website] Judge Arthur Hunter on Friday released four inmates from jail who he claims were being held in violation of their constitutional right to adequate legal representation after the Hurricane Katrina disaster. Hunter postponed the trials until effective counsel can be provided to the inmates, charged with three misdemeanor drug charges and one minor felony.

Military Prosecution After State Acquittal

A man who was acquitted in 1989 -- and became a symbol of the wrongly accused -- now may face charges for the same crimes in military court. He's been out of the Army since 2004, but he is being recalled so the Army can investigate the 1985 crimes, using DNA technology that wasn't available then. Accusations again pursue suspect in 1985 killings, despite acquittal, Seattle Times, Oct. 6, 2006.

Here's a timeline:

• 1985 - Timothy Hennis, then stationed at Fort Bragg, adopts a dog from a family that is being relocated. Several days later the woman of the family is raped, and she and two of her children are killed. Hennis is charged with the crimes.
• During Hennis's trial, the prosecution projects dozens of crime-scene photos onto a screen above his head. He is convicted and sentenced to death.
• 1988 - The North Carolina Supreme Court reverses, finding that the use of the photos was prejudicial. Against an argument that the error was harmless, the court notes that the evidence against Hennis was not overwhelming -- Hennis "was linked to the crime through circumstantial evidence and through direct evidence upon which the witnesses' own remarks cast considerable doubt." A dissent would have found the photographs admissible. It recounts the evidence against Hennis. State v. Hennis, 323 N.C. 279, 372 S.E.2d 523
  (1988), Westlaw.
  
• Hennis is retried. Psychologist Elizabeth Loftus testifies as an expert about the unreliability of eyewitness testimony. Hennis is acquitted.
• 1993 - A true-crime book covers the case: Scott Whisnant, Innocent Victims.
• 1996 - The book is made into a TV movie.
• 2004 - Hennis retires from the Army and settles in Lakewood, WA (Pierce County).
• 2006? - Reviewing cold cases, the sheriff's office finds information related to the crimes and turns it over to the district attorney. The district attorney gives it to the military because further state prosecution is barred by double jeopardy.
• 2006 - The Army recalls Hennis so it can pursue the investigation. It has jurisdiction over crimes committed by soldiers, even if they are off the base.

UW notes: The Times article quotes Prof. John Junker, explaining why a prosecution is possible despite the acquittal. Prof. Loftus was at the UW; she now teaches at UC-Irvine but still is an affiliate professor at the School of Law and in the Department of Psychology.

Thanks: Maureen Howard.

Supreme Court upholds DUI law

The Washington Supreme Court upheld a state law concerning admissibility of DUI tests. Both defense attorneys and prosecutors are claiming victory, so it sounds like a complex case (I haven't read it yet). Supreme Court upholds DUI law, News Tribune, Oct. 8, 2006.

Want to read it and figure it out? See City of Fircrest v. Jensen, courts website majority (Charles Johnson, J.), concurrence (Owens, J.), dissent (Sanders, J.)(Oct. 5, 2006).

Thanks: Lisa Kremer.

Bandidos Leader Sentenced

District Court Judge John Coughenour sentenced George Wegers, the national president of the Bandidos motorcycle club, to 20 months in prison. With credit for time served, he will be released in three weeks. Over a year ago (June 2005), he was charged with kidnapping, witness tampering, extortion, and drug tampering. The government alleged that the Bandidos were a corrupt organization under RICO. Jeffery Robinson, Wegers's attorney, said of the plea agreement:

I think it really does put the lie to what the government claimed at the beginning of this case, that this was a criminal organization, that the only reason for them to exist was to commit crimes.

Bandidos president gets 20-month sentence, Seattle Times, Oct. 7, 2006.

A press release from the U.S. Attorney's office (Oct. 6) gives more detail about the sentence. In contrast with Robinson's remark above, the government emphasizes the organization:

WEGERS was indicted in June 2005, following a two year investigation into a pattern of criminal activity by the motorcycle club. As President of the Bandidos, WEGERS sanctioned and approved many of the criminal acts of club members. In his plea agreement WEGERS admits he encouraged his co-defendants to commit the crimes of witness tampering and motor vehicle trafficking. In April of 2006, WEGERS instructed Bandido members not to talk to federal investigators about a kidnaping incident in May 2003. In all, 18 defendants have pleaded guilty in connection with the Bandidos criminal activity.

See also President of Bandidos motorcycle gang sentenced to 20 months, Seattle Times, Oct. 6, 2006; 5 Prominent Bandidos in Plea Deal, Seattle Times, May 11, 2006.UW note:Robinson and his co-counsel, Amanda Lee, are both Trial Ad instructors. Judge Coughenour teaches Advanced Trial Advocacy.

Diary of a Criminal Solicitor

Curious about criminal defense in London? For one practitioner's perspective, see Diary of a Criminal Solicitor.

This is a blog from a solicitor who works doing purely criminal defence work. I often find myself in utter amazement or red faced with anger working at Police Stations, Magistrates Courts, Crown Courts and even my office. You will find me ranting and raving in this blog about anything and everything that gets up my nose.

O'Connor warns of growing efforts at 'judicial intimidation'

Retired Justice Sandra Day O'Connor recently wrote an op ed piece in the Wall Street Journal about efforts to intimidate judges. JURIST - Paper Chase: O'Connor warns of growing efforts at 'judicial intimidation', Jurist - Paper Chase, Sept. 27, 2006.

Suit Against Corps for Slavery Profits

Appealing a dismissal by the district court, plaintiffs argued in the Seventh Circuit that their suit should proceed against more than a dozen companies for profiting from slavery. Many of the companies were in states where slavery was illegal, but supported the institution by financing slaveowners' purchases and insuring the slaves. Descendents of slaves argue lawsuit against companies should proceed, Jurist - Paper Chase, Sept. 28, 2006. Slave heirs again seek reparations, Detroit Free Press (reprinting Chi. Trib. story), Sept. 28, 2006

Guilty Pleas in Eco-Arson

Two women entered guilty pleas yesterday for the 2001 firebombing of the UW's Center for Urban Horticulture. They promised to cooperate in the federal investigation of a series of arsons and attacks on property by the Earth Liberation Front and the Animal Liberation Front. As part of plea agreements, federal prosecutors will recommend lighter sentences than if they had been convicted of all charges -- 5-7 years and 3-5 years, rather than 30 years or more. Earth Liberation Front members plead guilty in 2001 firebombing, Seattle Times, Oct. 5, 2006.

shlep: the Self-Help Law ExPress

There's a new blog in town: shlep: the Self-Help Law ExPress.

SHLEP’s goal is to bring the benefits of a daily weblog to the Self-Help Law movement. We have assembled a Team of contributors with diverse expertise, skills and perspectives, to make it happen. Developments and news about self-help will be presented, and viewpoints expressed. In addition to creating or organizing background materials for those who want to find self-help resources, the shlep Team will attempt to keep readers informed of self-help resources available to the public and to professional providers of those services, of studies and reports on self-help law and related issues, of relevant symposia and meetings, and of the people and groups aiding (or obstructing) the movement.

Shlep's editor and founder is David Giacalone, but he has recruited several other people who will post, including me. If you're interested in access to justice and opportunities and challenges for people who handle their own legal problems, take a look.

Robbery Victim Sues Bank

A California man who was robbed after leaving a WaMu branch is suing the bank. He blames the bank's layout -- a departure from traditional bank design that puts tellers out at free-standing stations ("teller towers") rather behind a counter -- for the robbery, which took place outside the bank. Robbery victim blames WaMu design, Seattle Times, Oct. 3, 2006.

The customer took $20,805 in cash to the bank, planning to combine it with money from his line of credit to get a cashier's check to buy a piece of property. The teller left the cash sitting on her work surface (where other customers could see it), while she checked with the bank manager about accepting that much cash. They declined because the customer's driver's license had expired, suggesting that he renew his license and then return. He was robbed when he left the bank, by a man who had been inside the branch when the pile of cash was in the open.

A couple of legal tangents from this story:

• Washington Mutual -- er, WaMu (the bank made its nickname its official name recently) -- got a patent on the style of layout that includes a concierge desk, teller towers, and so on. "System for providing enhanced systems management, such as in branch banking," Patent 6,681,985, Jan. 27, 2004.
• The teller and manager were probably scrupulous about the man's ID because money-laundering laws require banks to report cash transactions over $10,000. See, e.g., Office of the Comptroller of the Currency, Money Laundering: A Banker's Guide to Avoiding Problems (Dec. 2002). The customer, a real estate investor, said the cash was from tenants' rent payments. He says that, even if the bank did have to send him away to get current ID, once it displayed his pile of cash to all in the lobby, it should have either held the money for him or at least had a security guard escort him to his car.

Filed in: robbery, torts, banks, WaMu, IP, money-laundering

A Truck's Opening Statement

Dave Swanner passes along a colleague's story about presenting opening argument from the perspective of one of the key players in the drama: Telling a Story in Opening Statement Through the Eyes of A Truck, South Carolina Trial Law Blog, Aug. 21, 2006.

Graphic from http://www.free-clipart-pictures.net/truck_clipart.html.

Filed in: tips, opening-statements, South-Carolina-Trial-Law-Blog

Why are There So Many Legal Consultants?

In Why are There So Many Legal Consultants?, David Swanner of South Carolina Trial Law Blog responds to another blogger's question by listing the consultants he uses. His consultants?

• Business Coaching
• Trial Consultant
• Marketing Consultant
• Blogging Consultant
• Website Consultant
• Case Management Consultant

Read his post to see why he uses each type of consultant. His concluding words:

I try to find the most knowledgeable people in the country and use them. I think it helps to leverage their knowledge and shorten my learning curve. I also have a number of informal mentors that have provided a lot of guidance. After awhile, you build a team that’s large enough that you can’t do everything. Plus…I need all the help I can get.

Solo practice doesn't necessarily mean you're all alone!

Filed in: tips, Swanner, South-Carolina-Trial-Law-Blog, consultants

MyTrialBlog.com

MyTrialBlog.com is a new blog from Jon Mitchell ("Mitch") Jackson, a lawyer in Laguna Beach, CA. He offers daily tips on trial practice and hopes to have guest posts from other trial lawyers.

The most recent posts:

• On Your Client’s Direct Examination, Be Honest, Forthright, and Use Background Information To Bond With The Jury
• Pre-Trial Voluntary Settlement Mediations- Establish settlement parameters with opposing counsel BEFORE agreeing to mediation
• You’ve Got A Great Expert On The Stand- Make sure that on direct, you qualify him the right way
• Never Tried a Case - Maximize the settlement or verdict value of your case by associating in an experienced and well respected trial counsel
• Want To Be A Great Trial Lawyer- Act with passion, drive, dedication and persistence
• Present Your Evidence Smoothly- If you struggle in front of a jury trying to get evidence admitted, they will view it less favorably

Thanks: South Carolina Trial Law Blog.

Filed in: tips, blogs, MyTrialBlog, Jackson

Explaining Money Damages to the Jury

How can a plaintiff's attorney explain to the jury why the plaintiff needs money damages? Here's a suggestion from the South Carolina Trial Law Blog: Guest Post on Explaining Money Damages to the Jury, Sept. 17, 2006.

Filed in: tips, damages, South-Carolina-Trial-Law-Blog

DNA Fluke - Babies That Didn't Match Mom

DNA provides a very, very accurate way of identifying family members. But a rare anomaly shows the tests aren't perfect. She's Her Own Twin, ABC News, Aug. 15, 2006.

When a Washington woman named Lydia Fairchild sought public assistance, routine paternity tests confirmed the child's father -- but indicated that she was not there mother. Having been through pregnancy and labor, she was astonished. But the Department of Social and Health Services repeated the test, denied benefits, and began proceedings to take her children from her. She had trouble finding an attorney, but eventually hired Richland lawyer Alan Tindell.

It turned out that she has a very rare condition called "chimerism," which means that her body includes two separate strands of DNA -- "hers" (the DNA in most of her body) and that of a phantom twin (a twin that merged with her in utero).

The Discovery Channel has a documentary on this phenomenon: I Am My Own Twin.

See:

• Who's Your Daddy?, Discovery Magazine, April 2006.
  
• Former Tri-City Mom Vindicated, Tri-City Herald, May 19, 2005.

Thanks: Ernesto Longa.

Filed in: DNA, chimerism, DSHS, Tindell, Fairchild, Longa

Spinach Litigation

Seattle firm Marler Clark has made a specialty of tainted food litigation -- from E. coli from tainted hamburger at Jack in the Box in the early 1990s to spinach cases this fall.

This week the Wall Street Journal profiled the firm: How a Tiny Law Firm Made Hay Out of Tainted Spinach, Wall St. J., Sept. 27, 2006, at B1. (Seattleites may have seen that article reprinted in this morning's Seattle Times (p. F1), but it's not on the Times website.)

Some interesting points:

• Expertise: The firm has an epidemiologist and a nurse on staff in addition to its six attorneys.
• Marketing: Marler Clark has used the Internet for visibility. It sponsored a couple of dozen websites and blogs with information about food-borne illnesses and litigation, so that when when people start looking for information, there's the firm.
• Settlements: "The firm has tried exactly one case" -- winning a $4.6 million verdict against a school district where 11 children got E. coli from cafeteria tacos. It has settled many, many cases -- for a total of $250 million.
• Impact: The firm attributes some food industry safety reforms to its litigation. Others question whether the impact.

Photo from http://mypyramid.gov/pyramid/food_library/vegetables/spinach.html.

Filed in: Marler-Clark, practice-of-law, food, spinach, Jack-in-the-Box, settlements

WSBA Honors Bill Andersen

This week the Washington State Bar Association honored Professor Emeritus William H. Andersen for his contributions to administrative, law the justice system, and the public. UW press release, Sept. 26, 2006.

Filed in: WSBA, Andersen, UW