District Judge Search

The White House and Senators Murray and Cantwell have formed a committee to see potential nominees for the district court position that will open up when John C. Coughenour takes senior status July 27. Applicants should write to the committee by June 22.

Judge Coughenour has been on the bench since 1981. Before that, he was in private practice in Seattle (1966-81) and was an assistant professor at the UW School of Law 197-73 teaching Trial Practice. He currently teaches Advanced Trial Advocacy at the UW.

Categories: judges, judicial-selection, Coughenour, UW, WDWash

Enron Verdict

The Enron verdict is in: Lay was found guilty on 6 of 6 counts; Skilling on 19 of 28. Scott Martin at LegalBlogWatch links to various blogs and documents. One link: Peter Lattman at Wall Street Journal's Law Blog pointing out three aspects of the cross-examination of Jeffrey Skilling that could have hurt him.

Meanwhile, on the civil side of the docket, Judge Melinda Harmon (S.D. Tex.) approved a settlement between three megabanks (Canadian Imperial Bank of Commerce, JPMorgan Chase & Co., and Citigroup Inc.) and a group of shareholders; the lead plaintiff in the group of shareholder lawsuits is the University of California. The banks will pay $6.6 billion to settle claims that they helped Enron manipulate earnings.


Image: shredded currency. You can buy a 5-pound bag with at least $10,000 of shredded currency from the Bureau of Engraving and Printing Store for $45. It would take 660,000 of those bags to add up to the settlement just approved. That's 3,300,000 pounds. So if you're tempted to think that the settlement was a ton of money, think again. By my calculations, it's about 1,650 tons of money. That's a lot. And that gives some small idea of the Enron mess -- after all, this settlement is just between three banks and certain investors -- neither all the consumers and investors harmed nor all the parties who perpetrated the fraud.

Filed in: news, Enron, white-collar, cross-examination, banks

Emotional Distress for Pet Injury

Division 3 held today that a cat's owner may sue for emotional distress because of malicious injury to the pet. Womack v. Von Rardon, --- P.3d ---, 2006 WL 1428272 (Wash. App. May 25, 2006), Westlaw, Washington Courts.

For the first time in Washington, we hold malicious injury to a pet can support a claim for, and be considered a factor in measuring a person's emotional distress damages.

The court distinguished a Division 2 case, Pickford v. Masion, 124 Wn. App. 257, 98 P.3d 1232 (2004), which involved negligent, not malicious injury to a pet.

The injury here was malicious: three minor boys took the cat (Max) from the plaintiff's porch to a schoolyard and set him on fire with gasoline. The cat had to be euthanized. Harsh as those facts were, they weren't enough for the tort of outrage:

What happened to Max was deplorable, but the record does not sufficiently establish the required intent or the necessary severity. Moreover, the trial court, after an evidentiary hearing not before us, did find liability among the remaining liability theories. We are not persuaded the damages awarded would differ under a different liability theory except for treble damages in the case of statutory waste. While distressing, the trial court could have decided the harm was not intended or was not sufficiently severe. Thus, the court did not err in dismissing the outrage claim.

The court upheld the award of $5000 to the plaintiff, but upheld the summary judgment against plaintiff on several other theories (e.g., nuisance, waste).

Plaintiff's attorney was Adam Karp, who teaches Animal Law at the UW and SU.

Image: Mao-Mao, safe and sound, with her mousie. Photo by mw.

Filed in: cases, emotional-distress, damages, animal-law, Karp, UW, cats

Dr. Wins Counterclaim, Sanctions

Accused in a civil case of molesting a patient (and allowing his identical twin to molest her), a local doctor counterclaimed, saying the plaintiff had fabricated the allegations and damaged his repution. Yesterday Judge Katherine Stolz, Pierce County Superior Court, ordered the plaintiff to pay the doctor $2.8 million. Carol M. Ostrom, Woman ordered to pay physician $2.8 million, Seattle Times, May 25, 2006.

The doctor, Dennis Momah, and his twin, Dr. Charles Momah, have been accused medical malpractice, sexual improprieties, and impersonating one another. Dr. Charles Momah is currently in prison after convictions for second- and third-degree rape and indecent liberties, which is is appealing. Stolz dismissed the plaintiff's case because her allegations were contradictory and inconsistent with evidence such as patient sign-in sheets.

"The contradictions and inconsistencies in Ms. Saldivar's testimony were some of the most pronounced this Court has ever seen," Stolz wrote. "This Court finds that Perla Saldivar knowingly and intentionally fabricated her allegations against Dr. Dennis Momah and Dr. Charles Momah."

Judge Stolz also ordered the plaintiff's attorney, Harish Bharti, to pay Dr. Dennis Momah $250,000 and to pay the court $50,000 in sanctions.

Bharti also must "prominently" post the judge's scathing ruling on his Web site for as long as the site contains any reference to the Momahs, and at least for a year.

The judge said Bharti was an "active and knowing participant in the fabrication of Perla Saldivar's ever-changing accusations against Dennis Momah." The judge also said Bharti filed "irrelevant and salacious" allegations just to get media attention and "harass and damage the reputation" of Dennis Momah.

Bharti says he is appealing the sanctions. "Everything worthwhile I did in my life, I caught hell for," he said. "This is the most worthwhile cause I will ever do in my life."

Mr. Bharti represents many plaintiffs who are suing the Momahs. See this page of his website.

Among other thing, Bharti successfully sued McDonald's on behalf of a class of vegetarians, Hindus, Jews, and Sikhs over the company's use of beef flavoring in its fries, winning a $10 million settlement and an apology. The settlement funds are being distributed to a number of charities. Bharti has posted the settlement documents (along with a number of news stories) on his website. The final disbursement was made in July 2005. See article in Hinduism Today.

UPDATE (6/14/06). This case received national coverage: G.M. Filisko, A Public (on the World Wide Web) Scolding: Judge Orders Attorney to Post Scathing Opinion in Losing Case, ABA Journal eReport, June 9, 2006. Quoted in the article are UW law professor Steve Calandrillo and SU's trial ad director, Prof. Marilyn J. Berger.

I have still not found Judge Stolz's order posted on Mr. Bharti's website. Perhaps he is waiting until his appeal is resolved. In the article, he is quoted:

"I believe in the system," Bharti says. "It’s made a big mistake, and it’s going to be corrected. You think the court of appeals will let this order stand for five minutes?"

Filed in: dismissals, sanctions, Rule-11, med-mal, Pierce-County, Stolz, Momah, Bharti, McDonald's UW, Calandrillo, Seattle-U, Berger

Federal Judges Resigning

The Administrative Office of the U.S. Courts reports that more federal judges are resigning than in the past -- many for financial reasons. U.S. Courts Newsroom - Trends in Judicial Resignations and Retirements. "Lifetime appointment" is sort of like "all you can eat" -- just as you don't have to eat until you drop, you don't have to serve your whole life.

The shift is dramatic:

1958 to 1969 – 3 departures
1970 to 1979 – 22 departures
1980 to 1989 – 41 departures
1990 to 1999 – 55 departures
2000 to May 11, 2006 – 42 departures

For perspective, note that there were 809 active article III judges in 2005 (see table). So in the last six years, about 5.2% of them resigned. (In 1990, there were 899 active article III judges. I stopped looking before finding the number for 1970.)

Thanks to beSpacific.

Filed in: judges, Administrative-Office-for-the-US-Courts

Graphic by mw.

Communication Tips

Law Practice Today from the ABA offers tips for effective communication. They aren't limited to trial practice but, of course, communicating is a big part of a trial lawyer's job, in and out of the courtroom. Stewart Levine, Essentials of Effective Communication, Trial Prac. Today, Feb. 2006.

Filed in: communication, tips, ABA

International Scam Busts

You know all those email messages inviting you to get rich by helping a Nigerian claim a million dollars? Another scam, using Spanish speakers, promises people credit cards if they send in a couple of hundred dollars. An international investigation ("Operation Global Con") of these and other scams has arrested 565 people in 5 countries. In the U.S., there have been 139 arrests and 61 convictions; 426 arrests have been in Canada, Costa Rica, the Netherlands, and Spain. JURIST - Paper Chase: Gonzales announces 565 arrests in international fraud investigation, Feds arrest hundreds for fraud - U.S. Business - MSNBC.com.

Filed in: news, Operation-Global-Con, scams, fraud, DOJ

Idaho Interpreters

For a thorough review of the law and procedure with respect to court interpreters in Idaho criminal procedings, see Ritchie Eppink, Court Interpreters in Idaho's Criminal Courts, 42 Idaho L. Rev. 235 (2005), Westlaw.

Filed in: interpreters, Idaho

Image source: my own clowning around with Microsoft Paint.

Demand for Jury Trial: Empirical Analysis

Who chooses a jury trial? Does it affect other choices, such as settlement? See Joni Hersch, Demand for a Jury Trial and the Selection of Cases for Trial, 35 J. Legal Studies 119 (2006).

Abstract
This paper uses a unique data set to examine how parties in civil litigation choose whether to demand a jury trial or to waive this right and whether trial forum influences the probability of trial versus settlement. Plaintiffs are more likely to demand trial by jury when juries are relatively more favorable to plaintiffs in similar cases and jury trials are relatively less costly than bench trials. Cases in which jury trials are demanded are 5.5 percentage points more likely to settle without a trial than cases in which jury trials are waived. This differential settlement rate by potential trial forum suggests that tried cases are not a random sample of the set of legal disputes, so observed similarities between bench and jury verdicts may result from case selection effects.

Filed in: empirical-studies, juries, judges, settlements, Hersch

Punitive Damage Analysis

Recently I mentioned a National Law Journal article about the debate between two empirical researchers, Theodore Eisenberg and W. Kip Viscusi. If you're curious, here are two of the formal articles:

Joni Hersch & W. Kip Viscusi, Punitive Damages: How Judges and Juries Perform, 33 J. Legal Stud. 1 (2004).

Abstract
This paper presents the first empirical analysis that demonstrates that juries differ from judges in awarding punitive damages. Our review of punitive damages awards of $100 million or more identified 63 such awards, of which juries made 95 percent. These jury awards are highly unpredictable and are not significantly correlated with compensatory damages. Using data on jury and bench verdicts from the Civil Justice Survey of State Courts, 1996, we find that juries are significantly more likely to award punitive damages than are judges and award higher levels of punitive damages. Jury awards are also less strongly related to compensatory damages. The differential effect of juries is most pronounced among the largest awards. Juries also tend to award higher levels of compensatory damages, which in turn boost the punitive damages award. The findings are robust with respect to controlling for self-selection of jury or bench trial.

Theodore Eisenberg & Martin T. Wells, The Significant Association Between Punitive and Compensatory Damages in Blockbuster Cases: A Methodological Primer

This article assesses the relation between punitive and compensatory damages in a data set, gathered by Hersch and Viscusi (H-V), consisting of all known punitive damages awards in excess of $100 million from 1985 through 2003. It shows that a strong, statistically significant relation exists between punitive and compensatory awards, a relation that replicates similar findings in nearly all other analyses of punitive and compensatory damages. H-V's claim that no significant relation exists between punitive and compensatory awards in these data appears to be an artifact of questionable regression methodology.

Filed in: punitive-damages, judges, juries, empirical-studies, Eisenberg, Hersch, Viscusi, Wells

Graphic by mw.

Juror Utilization

Several of my friends have been called for jury duty but never sat on on a trial -- some say they never even got out of the jury assembly room. That's a phenomenon termed "juror utilization" and now analyzed by two statisticians at the Administrative Office of the U.S. Courts: Marika Litras & John R. Golmant, A Comparative Study of Juror Utilization in U.S. District Courts, 3 J. Empirical Legal Studies 99 (2006).

Suppose you have a pool of 100 potential jurors. If 8 are challenged and 12 serve, then you have 80 left. They'd term that 80% NSSC -- Not Serving, Selected or Challenged. The Administrative Office of the U.S. Courts set a goal of keeping that number below 30%.

The authors looked at statistics for all the district courts for an 11 year period (1992-2002). The overall NSSC rate rose during that time, from 34.1% to 39.3%. Surprisingly (to me), there was large variation among the districts -- in 2002, the district courts that used jurors most efficiently had a rate of 6.5%, while the highest rate was 71.2%

The authors analyzed the statistics with respect to lots of other variables. What made the difference? Was it the number of criminal versus civil trials? The number of judges in the district? The number of potential jurors in each panel? Their conclusion: "inefficient use of jurors is largely a function of high juror supply, low juror demand, and constraints on judicial resources."

Filed in: juries, empirical-studies, Administrative-Office-for-the-US-Courts, Litras, Golmant

DC's Paperless Court

The criminal division of the Superior Court in Washington, DC, went to a paperless case management system at the beginning of the year, and the implementation has not been smooth. Bethany Broida, Computer Woes Plague Court, Legal Times, March 31, 2006.

Criminal defense lawyers say a new computer system in Washington, D.C., Superior Court is wreaking havoc with their cases and in some instances violating their clients' rights.

The attorneys say that * * * bad information has led to their clients being arrested after warrants have been dismissed, and in some cases the opposite is occurring: Defendants with bail violations are walking because warrants haven't been entered into the system.

In other cases, motions and paperwork are getting lost. And some lawyers say they can no longer trust what the court record is telling them.

Filed in: technology, court-clerks

E-Transcripts for Depositions

An attorney is sold on a new format for electronic depositions that is searchable and preserves the look of the original (with page and line numbering). N. Kane Bennett, Presenting Depositions a Better Way: Electronic Transcripts, Conn. L. Trib., March 30, 2006.

Filed in: depositions, technology

Perp Walk Tips

Some prosecutors make a point of having white-collar defendants arrested very publicly, often notifying the press before hand. William R. Mitchelson Jr. & Mark T. Calloway, in How to Avoid Letting a 'Perp Walk' Turn Into a Parade, Nat'l L.J., March 21, 2006, describe the practice and its rationale and then offer tips for defense counsel.

Why the "perp walk"? Prosecutors hope to:

• send a message that no one is above the law;
• deter others;
• inform the public about law enforcement efforts;
• encourage witnesses to come forward;
• put pressure on the defendant.

What can defense counsel do when the client under investigation appears likely to be arrested? The authors suggest:

• Know the local practice.
• Negotiate with prosecutor for voluntary surrender rather than arrest.
• Work with U.S. Marshals service to arrange a surrender as soon as the warrant is issued.
• Prepare the client.

Filed in: perp-walks, criminal-law, white-collar, tips

Image: Joseph Basile, hiding his face with his coat, under arrest in connection with the seizure of $25 million worth of narcotics, Chief of Detectives William T. Whalen standing near him with some of the confiscated drugs. 02/1949. National Archives, http://www.archives.gov.

High-Tech Case, Low-Tech Judge

Law.com has this story about a trial in which counsel for both sides was eager to use high-tech exhibits and other trial technology, but the judge was not. High-Tech Case, Low-Tech Judge, Law Technology News, March 10, 2006.

The case was a suit against the City of New York, alleging that police had shaken a baby during the arrest of the child's father in the family's apartment.

The plaintiffs hired a graphics consultant, who created an animated timeline showing the movements of all the people in the apartment in real time. But the judge would not allow it to be shown during opening statements. Fortunately for the attorneys, the consultant had a back-up: a board with magnetic icons that could be moved around.

The defense also hired a consultant, who created a database of documents and transcripts, some of which the attorneys projected onto a large screen during the trial. The defense was unsuccessful, though, in its effort to use real-time transcripts to show where testimony differed from that in depositions.

Filed in: technology, exhibits, judges, consultants

Paperless Trial Practice?

Evan Schaeffer is a skeptic about going paperless, but some commenters to his post swear by it. The Illinois Trial Practice Weblog: Do Away With Paper Entirely? Not Me.

I find I've shifted a bit over the years. I do a lot more online, but I still like to read lengthy documents in paper. I also use paper for very short documents (to-do lists, reminders to myself, etc.). Of course organization is a huge challenge, no matter what medium one is trying to manage. My Word files are organized pretty well, but my e-mail inbox is just as messy as my desk.

Electronic filing certainly has made court documents more widely available. It's amazing to be able to sign onto PACER and find docket sheets and pleadings from distant courts.

Filed in: technology, practice-of-law, Schaeffer, Illinois-Trial-Practice-Weblog

Photo credit: Cheryl Nyberg, April 2005

Dog Sniffs Under State Constitutions

The Supreme Court ruled in Illinois v. Caballes, 543 U.S. 405 (2005) that police use of a drug-detecting dog during a traffic stop does not violate the fourth amendment. It remanded the case for consideration of the issue under the Illinois constitution. Last week, in People v. Caballes, the Illionis Supreme Court held that the practice did not violate the state constitution's search and seizure provision or its privacy clause. Law Dawg Blawg: Illinois Supreme Court Allows Dog Sniffs

Having read this in an Illinois blog (Law Dawg Blawg is from the Southern Illinois University Law Library (SIU's mascot is the Saluki)), I wondered: what's the status of dog sniffs under the Washington constitution?

In a recent law review article, Justice Charles Johnson explained:

Washington has not adopted the federal Supreme Court's blanket holding that dog sniffs are not searches. State v. Boyce, 44 Wn. App. 724, 730, 723 P.2d 28, 31 (1986) ("As long as the canine sniffs the object from an area where the defendant does not have a reasonable expectation of privacy, and the canine sniff itself is minimally intrusive, then no search has occurred."). Washington law requires a case-by-case analysis when officers use sensory-enhancing techniques in the course of their investigations. State v. Jackson, 150 Wn.2d 251, 264, 76 P.3d 217, 224 (2003) (en banc) (installation of "sense-enhancing" GPS tracking on vehicle constitutes search and seizure under Article I, Section 7); Young, 123 Wn.2d at 188 ("a dog sniff might constitute a search if the object of the search or the location of the search were subject to heightened constitutional protection"); State v. Stanphill, 53 Wn. App. 623, 631, 769 P.2d 861, 865 (1989) (dog sniff of package at post office is not a search); State v. Wolohan, 23 Wn. App. 813, 818, 598 P.2d 421, 424 (1979) (dog sniff of parcel in bus terminal is not a search).

Justice Charles W. Johnson, Survey of Washington Search and Seizure Law: 2005 Update, 28 Seattle U.L. Rev. 467, 481 (2005).

Filed in: dogs, 4th-amendment, Illinois-v-Caballes, law-dawg-blawg

Image: Jesse, a dog who was not trained or employed by the police, but regularly engaged in searches and seizures. Here she is seen with a seized flashlight in fall 2002. Photo by mw.

Interpreter Resource Bonanza

LLRX.com has a great guide to Interpretation and Translation Resources for the Criminal Justice System by Ken Strutin (March 15, 2006). Here you'll find links to materials for federal and state courts, Spanish glossaries, ethical codes for interpreters, and resources for the deaf and hard of hearing and their interpreters.

Thanks to Sabrina Pacifici at LLRX for the tip.

Filed in: interpreters, cool-website, LLRX, Strutin

Image: section of Language Identification Flashcard, developed 2010 U.S. Census. http://www.lep.gov/ISpeakCards2004.pdf. "LEP" stands for "Low English Proficiency" -- playing on the acronym, this website is called "Let Everyone Participate." It has information aimed at federal agencies, at recipients of federal funds, and at individuals and organizations. It also links to the Federal Information Center's multilanguage gateway.

DC Metro Area Medical Malpractice Law Blog

The firm of Regan Zambri & Long offers the DC Metro Area Medical Malpractice Law Blog. Many of the posts cover national issues or studies. It's well-written and has lots of good information.

Filed in: med-mal, blogs, DC-Metro-Area-Medical-Malpractice-Law-Blog

Big Judgment in Road Rage Case

Yesterday Pierce County Superior Court Judge Vicki Hogan entered a judgment for $20 million in a wrongful death action against four young men who shot a 17-year-old girl in a road rage incident in 1997. The men had been acquitted in a murder trial; jurors said they couldn't tell who was lying. Later they were convicted of perjury.

The defendants lost the civil case by not appearing for the May 1 trial, and it is unlikely that any of them has -- or will have -- the resources to pay much of the $20 million judgment, but the family's lawyer, Jack Connelly, said: "The important thing is that justice is finally done. The alternative was to let these guys get away with murder and walk away." 'Justice is finally done', The News Tribune, May 20, 2006.

Filed in: judgment, wrongful-death, road-rage, Pierce-County, Hogan

Philip Morris Wins and Loses

Robert Ambrogi reports in Law.com's Legal Blog Watch on two big cases for Philip Morris. The Oregon Court of Appeals vacated a huge punitive damages award (good news for the company) and the Massachusetts Supreme Judicial Court held that a tobacco company could not shield itself from liability by saying that the plaintiff used it "unreasonably" (bad news for the company).

This isn't a tobacco blog, but tobacco cases often raise important trial practice issues -- the Reynolds attorneys' use of motions in limine a couple of weeks ago, the propriety of punitive damages, available defenses in product liability cases, and so on. Stay tuned, there might be more -- even though no smoking is allowed in University buildings (WAC 478-136-030(12)) -- or, now, any public buildings (RCW 70.160).

Filed in: tobacco, punitive-damages, product-liability, UW

Wrongful Convictions and Systemic Reform

The Fall 2005 issue of the American Criminal Law Review (vol. 42 no. 4) has a symposium on wrongful convictions and systemic reform, LexisNexis, Westlaw. Contents:

• Looking Foreword: Wrongful Convictions and Systemic Reform, by Daniel S. Medwed -- 42 Am. Crim. L. Rev. 1117
• How the Pretrial Process Contributes to Wrongful Convictions, by Andrew D. Leipold -- 42 Am. Crim. L. Rev. 1123, available on SSRN
• Lost Innocence: Speculations and Data about the Acquitted, by Daniel Givelber -- 42 Am. Crim. L. Rev. 1167
• System Failure, by Erik Luna -- 42 Am.Crim. L. Rev. 1201
• Moving Down the Wedge, by Andrew M. Siegel -- 42 Am. Crim. L. Rev. 1219
• Evidence Destroyed, Innocence Lost: the Duty to Preserve Potentially Exculpatory Forensic Evidence under Innocence Protection Statutes, by Cynthia E. Jones -- 42 Am. Crim. L. Rev. 1239
• The Role of Social Sciences in Preventing Wrongful Convictions, by Jacqueline McMurtrie -- 42 Am. Crim. L. Rev. 1271
• The Criminal Cases Review Commission as State Strategic Selection Mechanism, by Robert Carl Schehr -- 42 Am. Crim. L. Rev. 1289

In his introduction to the symposium, Prof. Medwed urges:

Now is the time to implement reform. Ultimately, the public may become inured to news accounts of exonerations and the sheer volume of DNA exonerations will undoubtedly dwindle as pretrial DNA testing becomes more prevalent. These twin developments could, regrettably and inaccurately, signal to some people that wrongful convictions are no longer a problem -- that it has been "fixed."

p. 1118. He identifies three broad themes in the symposium's papers:

the need to (1) examine the criminal justice system holistically and implement suitable structural changes; (2) continue to tinker with specific, micro-level elements of criminal law to protect innocent defendants; and (3) explore systems and theories outside American criminal law in seeking possible solutions.

Id.

Professor Givelber wrestles with the empirical question whether people who are acquitted are innocent. He "explores the sources of the belief that the acquitted, like the convicted, are guilty" and looks at the data supporting that view. p. 1169.

The data are consistent with the view that acquittals may reflect the opportunity afforded the accused for the first time to present his side of the story to a relatively open-minded decision maker. The most likely reason for an acquittal in such circumstances, I suggest, is that the defendant is innocent.

pp. 1169-70. An earlier version of this article is available on SSRN (Givelber, Daniel James, "Acquitting the Innocent" (November 9, 2003). Available at SSRN: http://ssrn.com/abstract=467520 or DOI: 10.2139/ssrn.467520).

Professor McMurtrie summarizes research and explains its relevance to three areas: eyewitness identification, false confessions, and child suggestibility. The fact that over 163 prisoners in the United States have been exonerated using DNA evidence shows that wrongful convictions do occur. Eyewitnesses whom the jury believed must indeed have been mistaken, and sometimes innocent people do confess to horrible crimes due to a variety of pressures. To reduce the likelihood of wrongful convictions, Prof. McMurtrie urges more use of the social science findings. For instance, an expert witness may help a jury understand that a witness may honestly believe that the defendant is the person whom he or she saw committing the crime and yet be wrong.

Filed in: wrongful-convictions, DNA, empirical-studies, criminal-law, eyewitnesses, confessions, child-witnesses, Medwed, Leipold, Givelber, Luna, Siegel, Jones, McMurtrie, Schehr, UW

Top Ten Tips

Elliott Wilcox at Trial Theater offers a pdf poster with his Top Ten Tips for Trial Lawyers.

Language Access Issues

The Washington State Coalition for Language Access (WASCLA) is a new organization -- including people from legal services, government, and social service agencies -- working to improve access to services for people with Limited English Proficiency (LEP). Goals include:

• Educate groups about legal requirements to provide interpreters
• Develop quality control standards and requirements for ongoing training
• Secure funding to support interpreter services and training
• Increase the pool of qualified interpreters and develop a centralized database
• Develop a model curriculum for interpretation services and cultural sensitivity training
• Develop a model curriculum for training for service providers

WASCLA's website, still in development, has some interesting resources:

• Policy statement by Northwest Justice Project, including guidelines for working with interpreters.
• A model protocol for working with victims of domestic violence who have Limited English Proficiency, from the Washington State Coalition Against Domestic Violence.
• An annotated resource list about cross cultural communication.

Filed in: interpreters, access-to-justice, cross-cultural-communication, Washington-State-Coalition-for-Language-Access, Washington-State-Coalition-Against-Domestic-Violence, , Northwest-Justice-Project

Prosecution's Closing Args in Enron

The case against Kenneth Lay and Jeffrey Skilling is now before the jury. Here's an article that discusses the prosecutor's closing arguments -- and also links to the 63 pages of jury instructions. Prosecutor Says Key Issue Is Whether Lay and Skilling Deceived Investors, Texas Lawyer, May 15, 2006.

Meanwhile, Lay's Bank Fraud Bench Trial Begins, Texas Lawyer, May 18, 2006. Judge Sim Lake (S.D. Tex.), who presided over the 16-week jury trial, is also the judge for the bench trial.

Image: Judge Sim Lake. Source: Third Branch, Feb. 2005, at 1.

Reynolds wins lawsuit over smoker's health

Someone commented on an earlier post that the jury found for R.J. Reynolds in the wrongful death case in the Western District of Washington this week. Sure enough, but the news coverage has been sparse:

• The Atlanta Journal-Constitution had two sentences in its "Daily Briefing" column.
• A North Carolina business journal had just a little more, relying on a Reynolds press release: Reynolds wins lawsuit over smoker's health, The Business Journal of the Greater Triad Area, May 16, 2006.
• R.J. Reynolds press release.
• Last week (May 12), the Andrews Tobacco Industry Litigation Reporter had a short piece saying the trial had begun.

Filed in: news, tobacco

Image: World War II poster (ca. 1942-43), War Production Board, Office for Emergency Management. National Archives.

Adult Punishment for Juveniles

Prof. Richard E. Redding of Villanova University School of Law reviews the literature addressing the question -- Adult Punishment for Juvenile Offenders: Does It Reduce Crime?. His paper is a chapter in Handbook of Children, Culture, and Violence (Sage Publications, 2005); a pdf may be downloaded from the Villanova University Legal Working Paper Series.

Filed in: sentencing, empirical-studies, juvenile-adjudications, Redding

Hmong Glossary, Other Interpreter Resources

The Wisconsin Court System has produced the nation's first English-Hmong glossary, a 75-page document with some 800 terms, downloadable in pdf. As of 1999, Washington had about 1200 Hmong, most living in the Seattle area. See HistoryLink article.

By the way, the Access to Justice conference next month will include a discussion of The Spirit Catches You and You Fall Down, a book about the culture clash between a California hospital staff and a Hmong family.

The Wisconsin Courts site links to other material for interpreters:

• Related links connects to professional interpreter associations, sites with glossaries, etc.
• Training resources lists courses and programs -- first in Wisconsin, and then in several other states, including one in Washington: the Cross Cultural Health Care Program.

Hat tip: Wisblawg.

Filed in: interpreters, Hmong, access-to-justice, event, Cross-Cultural-Health-Care-Program

Videotaping Judges to Check Bad Habits

A court in Massachusetts is reviewing videotapes of judges for potential weak spots, such as scowling or eye-rolling during testimony -- behavior that might suggest the judge favors one side. Tresa Baldas, Legal Technology - Ready for Your Close-Up, Your Honor?, Nat'l L.J., Feb. 6, 2006.

The article ends:

David Givens, an anthropologist who researched and videotaped judicial behavior for the Washington state judiciary for seven years, said videotapes can show potential bias in a judge.

For example, he said, if judges compress their lips when a defendant is talking, it sends a signal that they don't believe the defense. Or when they pay attention to the prosecutor, but scribble notes when the defense lawyer speaks, that implies they favor the prosecution.

The Washington state judiciary? I wanted to know more about that!

David Givens runs a research center in Spokane, the Center for Nonverbal Studies. He began his work on nonverbal communication as a graduate student here at the UW (Ph.D. 1967).

Dr. Givens's study of judges was commissioned by the Washington State Administrator for the Courts over 25 years ago. See Judicial Body Language Can Speak to Juries, AP, Jan. 31, 1981; David B. Givens, The Way Others See Us: It's Not What We Say in Court But How Our Bodies Speak That Telegraphs Our Message, Judges J., Summer 1980, at 21.

Last year Givens published a popular work, Love Signals: A Practical Field Guide to the Body Language of Courtship (St. Martin's Press, 2005). Of more interest to trial ad fans (professionally, at least) is his forthcoming book: Crime Signals: Body Language of Murderers, Terrorists, and Thieves (St. Martin's Press).

Givens is also the author of The Nonverbal Dictionary of Gestures, Signs & Body Language Cues. For an example, see the entry on Deception Cue.

Filed in: judges, technology, nonverbal-communication, empirical-studies, Givens, books, Center-for-Nonverbal-Studies, anthropology

Punitive Damage Scholars Clash

Two leading scholars have done empirical studies of punitive damage awards and reached disparate conclusions. American Lawyer contrasts the studies and lessons drawn by W. Kip Viscusi (Harvard Law School) and Theodore Eisenberg (Cornell Law School). Amy Kolz, Are Punitive Damage Awards Too High?, Jan. 27, 2006.

Filed in: punitive-damages, empirical-studies, Eisenberg, Viscusi

Defense's Closing in Enron Case

Yesterday, the defense delivered closing arguments in the trial of Enron executives Kenneth Lay and Jeffrey Skilling for conspiracy to commit securities fraud and wire fraud. Read a commentary: Brenda Sapino Jeffreys, Law.com - In Closing Arguments, Enron Defense Zeroes In on Juror Hesitation, Texas Lawyer, May 17, 2006.

Categories: closing-arguments, Enron

Ax Murder in NY - Lots of Legal Questions

John Caher, Law.com - Slaying of N.Y. Appellate Clerk Raises Myriad Legal Questions, N.Y.L.J., May 17, 2006:

"As a career appellate clerk and devoted student of the law, Peter Porco likely would have relished the substantive legal issues that his own murder has generated.

Porco, 52, the principal clerk to Presiding Justice Anthony V. Cardona * * *, was brutally murdered with an ax during the early morning hours of Nov. 15, 2004, apparently as he slept in his bed. His wife, Joan, then 54, was resting by her husband's side and was similarly attacked, yet miraculously survived. Their 22-year-old son, Christopher, is charged with murder and attempted murder. He is slated to go on trial this summer. Pretrial hearings began Tuesday morning.

As prosecutors and defense counsel prepare for trial, the case has sparked an avalanche of motions, swirling around issues like Miranda warnings, right to counsel, excited utterances versus dying declarations and the scope of the Court of Appeals seminal ruling on the admissibility of prior bad acts, People v. Molineux.

Filed in: news, evidence, confessions

Battle Over Corp. Attorney-Client Privilege

Some members of Congress are concerned about the Department of Justice's policy of putting pressure on corporations to cooperate with government investigations by waiving attorney-client privilege. Both the ABA and the U.S. Chamber of Commerce have requested a hearing on the issue by the Senate Judiciary Committee. Marcia Coyle, Battle Expands Over Attorney-Client Privilege, Nat'l L.J., May 17, 2006.

Filed in: news, DOJ, attorney-client-privilege, white-collar, ABA, U.S.-Chamber-of-Commerce

Exoneree Gets JD

Chris Ochoa, who spent 12 years in prison for a crime he didn't commit, this weekend graduated from the University of Wisconsin law school and was the commencement speaker. Mr. Ochoa, threatened by police with the death penalty if he did not cooperate, falsely confessed to a rape/murder. Years later, he was exonerated by DNA evidence -- with the help of the Wisconsin Innocence Project, where he later worked as a law student. WisBlawg - From the UW Law Library: Freed With the Help of the Wisconsin Innocence Project, Chris Ochoa Earns His Law Degree. ABC News named him "Person of the Week."

Hat tip: Wisblawg.

Filed in: wrongful-convictions, DNA, Innocence-Project, University-of-Wisconsin, Ochoa

Boeing Settles with Govt: $615M

Boeing has agreed to pay $615 million to end federal investigations into government contracting improprieties. One scandal involved the improper recruitment of an Air Force procurement officer; another involved documents acquired from rival Lockheed Martin. Details of the deal are still being worked out. Boeing will acknowledge improper behavior by some employees but will not concede that the company could be convicted of a crime. The agreement will call the payment a "monetary penalty" rather than a "criminal penalty."The Seattle Times: Business & Technology: Price of Boeing scandals: $615 million U.S. penalty, Seattle Times, May 15, 2006.

Filed in: news, Boeing, settlements, government-contracts, white-collar

Image from http://www.hasslefreeclipart.com.

Who Said Voir Dire Wasn't Important?

Under Fed. R. Crim. P. 24(a), many federal judges conduct voir dire themselves, perhaps allowing counsel to suggest questions. An article in the NACDL's journal criticizes this practice and suggests that counsel move to have some time to conduct voir dire themselves. Dennis G. Terez, Who Said Voir Dire Wasn't Important?, Champion, April 2006, at 56.

Filed in: NACDL, voir-dire, tips

Those Doggone Sniffs Are Often Wrong: The Fourth Amendment Has Gone To The Dogs

The NACDL's journal has an article describing some of the ways in which defense counsel can challenge evidence from dog sniffs. Jeffrey S. Weiner & Kimberly Homan, Those Doggone Sniffs Are Often Wrong: The Fourth Amendment Has Gone To The Dogs, Champion, April 2006, at 12. Even well-trained dogs do not detect contraband with 100% accuracy. The authors praise Justice Souter's dissent in Illinois v. Caballas that said the idea of an infallible dog was "a creature of legal fiction." Moreover, there are significant subjective factors in the process. A dog alerting is not like a light going on -- it requires a trained handler, who interprets the dog's behavior as an "alert."

Filed in: NACDL, dogs, 4th-amendment, tips

Defense Lawyers in the Supreme Court

Some observers are concerned that some criminal cases before the Supreme Court are not ably handled by the defendants' lawyers, who often are not experienced advocates at that level. Tony Mauro, Law.com - Will Defense Lawyers Accept Help on High Court Criminal Cases?, Legal Times, May 12, 2006.

The National Association of Criminal Defense Attorneys (NACDL) has offered behind-the-scenes help, but now some leaders are trying to formalize the assistance, with moot courts and assistance with brief writing.

Formerly, criminal cases often had inexperienced Supreme Court advocates on both sides. But many states now have solicitors general to handle the litigation -- and the U.S. Solicitor General is often granted argument time on the side of the prosecution.

The article quotes Jeffrey Fisher of Davis Wright Tremaine, "one of the very few stars of criminal defense advocacy who currently practice before the Court." (Fisher has taught Supreme Court Decision Making at the UW. Soon he is moving to California to join Stanford's Supreme Court Litigation Clinic.)

Carolyn Elefant of MyShingle picked up on the big firm affiliations of many of the lawyers expressing concern about the quality of the defense advocates. She was concerned that the NACDL proposal was a move to take over cases. Hey Biglaw - Where Were You When It Mattered?, May 12. A commenter replies that NACDL is not trying to steal cases and that many of its leaders are from solo and small firms. One of Elefant's points remains: there's important, much needed work to be done in the lower courts too. More resources should go there, so that the records are better by the time the cases get to the Supreme Court (if they get there at all).

Filed in: SupremeCourt, criminal-law, appeals, practice-of-law, NACDL, Fisher, UW, Stanford, Elefant, MyShingle

Image from the Supreme Court's homepage, http://www.supremecourtus.gov.

Judge: Evidence Shows Government Influenced KPMG's Defense Fees Policy

When the Department of Justice prosecuted accounting firm KPMG for allegedly illegal tax shelters, KPMG cut off legal fees for the partners and employees who did not cooperate with the government. Defense attorneys said that KPMG did so because of pressure from DOJ and that it interfered with their representation of their clients. Their motion that the government be ordered to pay their fees out of KPMG's $456 million in fines. The prosecutor, of course, takes the contrary position. The motion is still pending, but at a hearing last week the judge was skeptical. Law.com - Judge: Evidence Shows Government Influenced KPMG's Defense Fees Policy, N.Y.L.J., May 12, 2006.

Carolyn Elefant wonders whether we consumers should reward with our business the companies that stand up to the government -- whether its resisting pressure from prosecutors or declining to turn over telephone records. Should You Choose a Company Based on How It Protects Its Employees and Customers?, Legal Blog Watch, May 12, 2006.

Filed in: attorney's-fees, practice-of-law, KPMG, tax, white-collar, Justice-Department, criminal-law

Trial Consulting

If the Wash. St. B. News article whetted your appetite for information about trial consultants, check out Trial Consulting, by Amy J. Posey and Lawrence S. Wrightsman (Oxford University Press, 2005).

According to the publisher's description:

Trial Consulting provides an in-depth examination of the primary activities of trial consultants, including discussion of the empirical support for those activities and ethical issues raised by them. The book also discusses the growth of the profession and consequent growing pains it has undergone, and recommends reforms that might move trial consulting forward as a respected profession.

Chapters include:

• 1. Trial Consulting: Does It Help Achieve the Cause of Justice?
• 2. Witness Preparation
• 5. Trial Strategies and Procedures
• 6. What Do We Know about Jury Deliberations and the Determinants Of Jury Decisions?
• 7. Jury Selection - Measures of General Bias
• 8.Jury Selection - Case-specific Approaches Chapter
• 10. What Needs to be Changed?

The book is available in the library, KF8915 .P67 2005 at Classified Stacks. Want to read a little without leaving your computer? Chapter 1, which serves as an introduction to the book and the field, is included on the publisher's website (along with the table of contents and index).

Filed in: books, consultants, juries, witnesses, empirical-studies, psychology, Posey, Wrightsman

Tagging Complete

I have now tagged all the posts in this blog, back to the beginning. So you can click on a tag in a post to find other posts on the same topic. You can also use the pull-down menu in the sidebar.

Filed in: notes-about-the-blog

Image: Ralph W. Schardt, California condor with tags, National Park Service, Pinnacles National Monument, Images of the Condors, http://www.nps.gov/pinn/condor/conimg.htm . "All California condors wear tags on their wings so they can be easily identified, even in the wild." Id.

Witness Prep by Trial Consultants

How should you prepare witnesses for trial? Could trial consultants help? This month's Washington State Bar News has an article discussing the issues:

Craig C. New, Samantha Schwartz, and Gary Giewat, Witness Preparation by Trial Consultants: Competitive Advantage or Invitation to Discoverability, Wash. St. B. News., May 2006.

One advantage is that the consultants may be able to help with aspects of the witness's communication style and demeanor that could affect the jury's impression. (I often have to remind myself to stop fidgeting when I speak -- and that's without the pressure of a trial!)

The authors are jury consultants, so the article is favorable, but they do mention criticisms and potential down sides.

New works for the Northwest firm Tsongas Litigation Consulting, Inc. Schwartz is a doctoral candidate, and New and Giewat already have Ph.D.s). Schwartz and Giewat are active in the national organization, American Society of Trial Consultants.

Filed in: witnesses, consultants, American-Society-of-Trial-Consultants, New, Schwartz, Giewat, Tsongas-Litigation-Consulting

Image from: http://www.miwd.uscourts.gov/COURTROOM%20TECH/Bell/witness_stand.htm.

Diocese Bankrupcty Records To Be Sealed?

The Roman Catholic Diocese of Spokane filed for bankruptcy (Dec. '04) due to some 175 sex abuse claims and now has moved to seal court records. The Spokesman Review opposes the motion and has requested the opportunity to look at claims against the diocese with the claimants' names deleted. U.S. Bankrupcty Judge Patricia Williams will hold a hearing on Monday. Newspaper Seeks Details of Abuse Claims, Seattle Times, May 11, 2006.

Two notes digressing from the question of press action to court records about current controversies --

Access to bankruptcy records generally has also been an issue, since personal bankruptcy filings contain very personal information, often material that could be used for identity theft. See Kristin A. Henderson, Lessons from Bankruptcy Court Public Records: A Conflict of Values for Law Librarians, 23 Legal Reference Services Quarterly 55 (numbers 2-3 2004).

A team of researchers has done very interesting empirical work on consumer bankruptcies in America using thousands of files from several jurisdictions (maintaining research protocols to protect privacy). See Teresa A. Sullivan, Elizabeth Warren & Jay Lawrence Westbrook, As We Forgive Our Debtors: Bankruptcy and Consumer Credit in America (1989); Teresa A. Sullivan, Elizabeth Warren, Jay Lawrence Westbrook, The Fragile Middle Class: Americans in Debt (2000); Elizabeth Warren & Amelia Warren Tyagi, The Two-Income Trap: Why Middle-Class Mothers and Fathers Are Going Broke (2003).

Filed in: news, Archdiocese-of-Spokane, sexual-offenses, sealed-records, press, bankruptcy, Williams, empirical-studies, books, Henderson, Sullivan, Westbrook, Warren

Tax Crime Trial Practice

This afternoon the UW Graduate Program in Taxation's class, "Tax Crimes: Investigations, Prosecutions, and Penalties," featured a panel discussion on prosecuting and defending a tax crime case. Prof. Nicole Chicoine generously invited others to visit the class. I took advantage of the opportunity and found the lively discussion very interesting.

The speakers included:

• Assistant U.S. Attorney Robert Westinghouse (senior litigation counsel in the U.S. Attorney's Office for the Western District of Washington)
• Defense Attorney Darrell Hallett, Chicoine & Hallett
• Defense Attorney Bob Chicoine, Chicoine & Hallett
• Defense Attorney Jim Frush, Cable, Langenbach, Kinerk & Bauer

Among them, these attorneys have over a hundred years of experience. Two of the attorneys now in private practice also worked for the government at some time -- one for the IRS and one as a special judge for the U.S. Tax Court. Quite a well-qualified panel!

A few observations:

• There are more layers of decision-making in tax prosecutions than in some other criminal prosecutions. An IRS special agent opens the file, investigates, and -- sometimes -- recommends prosecution. Then it all must be reviewed by the Department of Justice's Tax Division in DC. And then it goes to the local U.S. Attorney's office.
• Many of the cases turn on intent. Was the failure to file willful? Did the taxpayer intend to underreport income? (This differs from much other criminal practice where the key question is: Did this person do this deed?)
• Many defendants (and attorneys) face a "filing dilemma." Suppose the defendant is being investigated for failing to report the existence of offshore bank accounts. When the next April 15 comes around, should the taxpayer file and report the accounts? If so, then the information in the tax return could be used by investigators to turn up evidence about the past years. If not, then the fraudulent filing problem is compounded. (I suppose this sort of thing could come up in other contexts -- but not in a basic criminal case about a murder the defendant did or didn't commit at some point in the past.)

This is an area of trial practice I had not thought much about. It sounds very interesting -- all the challenges of persuading juries, communicating with clients in distress, etc., that you'd find in any practice, combined with a technically challenging body of law.

Filed in: tax, criminal-law, practice-of-law, UW, Chicoine, Frush, Hallett, Westinghouse, event, Capone

Image: Jury verdict in tax case against Al Capone. National Archives and Records Administration, http://www.archives.gov/exhibits/american_originals/capone.html

Senate Rejects Award Limits in Malpractice - New York Times

The Senate failed to move forward the Republicans' medical malpractice bills, S.22 and S.23. Senate Rejects Award Limits in Malpractice, New York Times, May 9, 2006.

Among other things, the bills would impose a limit on noneconomic damages. S.23 (the Healthy Mothers and Healthy Babies Access to Care Act) focuses on OB/GYN services; S.22 (the Medical Care Access protection Act of 2006 or MCAP Act) relates to health care liability generally.

See earlier post.

Filed in: legislation, med-mal, damage-caps

Image: "Community Hospital; Maternity Case," by an unknown photographer, Hutchinson, Minnesota, October 1924, National Archives and Records Administration, Records of the Bureau of Agricultural Economics (83-ML-10309), http://www.archives.gov/exhibits/picturing_the_century/greatwar/greatwar_img31.html

Football Walk-Ons Not a Class

Five men who played Division I-A football as walk-ons allege that the NCAA rule limiting schools to 85 football scholarships violates antitrust law -- and that, absent the rule, they would have received scholarships. They tried to have themselves designated as class representatives for a class of all I-A football walk-ons who practiced with their teams in the pre-season. Last week, Judge John Coughenour (W.D. Wash.) denied class certification. In Re NCAA I-A Walk-On Football Players Litigation, 2006 WL 1207915 (W.D. Wash. May 3, 2006), Westlaw.

Judge Coughenour walks the reader through the elements of class certification under Fed. R. Civ. P. 23(a) -- numerosity (check), commonality (check), typicality (check), and adequate representation (oops). The thing is, if the antitrust violation is shown, it is quite another matter to show that all the walk-on players from each Division I-A school would have gotten scholarships. And once you think that only some of them would have, then the members of the purported class would have interests at odds with one another.

Class certification also fails under FRCP 23(b) because "individual issues clearly predominate as to the element of damages" and class action treatment is an inferior means of handling the case.

Filed in: cases, class-actions, Coughenour, NCAA, sports

Image: Northwestern University football game, 1905. Source: SDN-004541, Chicago Daily News negatives collection, Chicago Historical Society, Library of Congress American Memory Project.

When Is a Motion in Limine Not?

After a tobacco company filed 11 motions in limine on the eve of trial of a wrongful death case, Judge James L. Robart (W.D. Wash.) was irritated -- and not by second-hand smoke. He thought that some of the motions were actually dispositive motions in disguise. What's the problem? It changes the calendar -- so that the motions were filed with much less notice to the other party and little time for the judge to consider them. Kimball ex rel. Kimball v. RJ Reynolds Tobacco Co., 2006 WL 1148506, No. C03-664 (W.D. Wash. April 26, 2006), Westlaw. Here is the pleading lesson Judge Robart gave the parties:

Mr. Kimball's two remaining claims have awaited trial for more than a year. Now, in the guise of “motions in limine,” RJR seeks to substantially pare those claims. The court has never before needed to remind a party that a motion in limine is substantially different than a dispositive motion. RJR's conduct, however, demands a different approach.

A motion in limine is “[a] pretrial request that certain inadmissible evidence not be referred to or offered at trial.” Black's Law Dictionary, 1038 (8th Ed.2004). Some of RJR's motions meet this definition. At least half of them clearly do not. In this court, parties must generally file motions in limine a few weeks before trial, and they become ripe no later than two weeks after their filing. Dispositive motions, by contrast, are due at least 90 days before trial, and become ripe at least four weeks after their filing. The court's scheduling orders give it ample time to consider dispositive motions. The court's scheduling orders give it very little time to consider motions in limine.

Competent counsel represent RJR in this matter. The court assumes that counsel is aware of the differences between dispositive motions and motions in limine. The court is thus surprised and disappointed to find numerous dispositive motions pending only days before trial. RJR apparently believes that it can transform a motion for dispositive relief into a motion in limine simply by stating that once the court throws out the claim or theory that is the focus of the motion, the court should exclude evidence that is relevant to that claim or theory. Under this logic, RJR is free to ignore the deadline for dispositive motions and bring “motions in limine” at its leisure. The absurdity of RJR's position compounds when the court considers that RJR brought a motion in limine regarding its assumption of the risk defense in early November 2005 (Dkt.# 77). In that motion, RJR explained that it brought the motion early because “fundamental fairness” required that it know the scope of its defenses well in advance of trial. Apparently, the same “fundamental fairness” does not extend to efforts to dramatically pare Mr. Kimball's claims days before trial.

With a long-delayed trial set to begin in less than a week, the court declines to provide an analysis of each of RJR's dispositive requests. Instead, the court provides the following summary of the claims and defenses the jury will hear at trial. The summary includes only those defenses that are relevant to the disposition of the motions in limine. The court will conclude this order with summary dispositions of the parties' motions in limine along with RJR's thinly-veiled dispositive motions.

The trial appears to be underway. I wasn't able to find any press coverage of it, but the court calendar shows it scheduled for Monday through Thursday next week.

May 15 update: Here is a "case backgrounder" from R.J. Reynolds.

Filed in: cases, motions, in-limine, judges, Robart, tobacco

image from http://www.4girls.gov/substance/tobaccoquiz.htm.

Origin of the Public Defender

Who came up with the idea idea for public defense? Stanford Law Professor says it was Clara Foltz, one of the first women lawyers in America. The abstract for her forthcoming article states:

Clara Foltz, one of the first women lawyers in the United States, was also the first to propose a public defender. Her radical idea that the state should provide a defense for those it accuses was born from Foltz's experiences as a jury lawyer facing unfair prosecutors, and from her involvement with other reform movements such as suffrage and populism. She marshaled creative constitutional arguments and a rights-based presumption of innocence in support of her conception.

Foltz's public defender was a capable jury lawyer, the equal of the public prosecutor in resources and respect. As actually enacted in the Progressive Era twenty years after Foltz first proposed it, the public defender was less concerned with individual advocacy than with more generalized fair process. The history of the public defender reveals the tension between the models of zealous advocate and responsible public official, a tension both present at the creation and perhaps inherent in the office itself.

Barbara Allen Babcock, Inventing the Public Defender, Am. Crim. L. Rev. (forthcoming Oct. 2006). (The whole article may be downloaded free from SSRN.) Another hat tip to Robert J. Ambrogi.

Prof. Babcock is behind one of my favorite websites, the Stanford Women's Legal History Biography Project. There are dozens of biographies in addition to the series of articles Prof. Babcock has written on Clara Shortridge Foltz. UW folks might be especially interested in UW alumnae Lucile Lomen and Bella Weretnikow Rosenbaum.

Filed in: history, Foltz, Babcock, indigent-defense, biographies, Women's-Legal-History-Biography-Project, Lomen, Rosenbaum, Stanford

Scam Promised Legal Help to Prisoners

A felon named William L. Daniel had a website advertising the law firm of T.A. Brockington & Associates, with 36 years of experience representing prisoners fighting to regain their freedom. According to the Florida attorney general's office, which has filed a consumer protection lawsuit against him, Mr. Daniel took payments (from $1800 to $5500) from at least three families, promising to get prisoners' sentences reduced or set aside. Bogus law firm's web site spelled trouble for desperate prison inmates, South Florida Sun-Sentinel, May 3, 2006.

Hat tip to Robert J. Ambrogi.

Categories: practice-of-law, prisoners, access-to-justice, consumer-protection, Brockington, Daniel, Ambrogi

ACS Hosts Documentary

The Puget Sound chapter of the American Constitution Society is hosting Soul of Justice: Thelton Henderson's American Journey, Thursday, May 11, 5:30-8:00, at Seattle Public Library.

Judge Betty Fletcher (9th Cir.) will introduce the film, a documentary about Judge Thelton Henderson (N.D. Cal.). Filmmaker Abby Ginzberg, Judge Beverly Grant (Pierce County Superior Court), and Judge Michael Spearman (King County Superior Court) will also speak.

The film's website says:

SOUL OF JUSTICE: Thelton Henderson’s American Journey is a timely and unforgettable story about one person’s commitment to integrity and human rights and his profound influence on the American judicial system * * *.

As the first black attorney in the Civil Rights Division of the Kennedy Justice Department in the 1960’s, Henderson, fresh out of law school, confronted the intricate challenges of being a black man in authority within the largely all-white world of the American legal system. With rare and powerful archival footage SOUL OF JUSTICE offers viewers an intimate window into the world of the young lawyer as he grapples with tough choices, including the decision to loan a car to Dr. Martin Luther King, Jr., a crucial act which which ultimately cost him his job.

Beginning with his 1980 judicial appointment * * *, Henderson’s tenacity in seeing that his decisions are implemented has made him a uniquely effective and brave jurist * * *. From the inhumane conditions at Pelican Bay State Prison to the slaughter of dolphins by tuna-fishing fleets, to the elimination of affirmative action, SOUL OF JUSTICE reverberates with the heart-wrenching and dynamic issues that have placed Judge Henderson on the front lines throughout the last 25 years.

* * * At a time of increasing polarization over the actions of judges in America, this compelling cinematic journey reveals the true power of Thelton Henderson’s fearless efforts to see that justice retains its soul.

Filed in: American-Constitution-Society, judges, films, Henderson, Fletcher, Ginzberg, Grant, Spearman

The Sedona Conference - Litigation Think Tank

The Sedona Conference is a nonprofit organization focusing on complex litigation, antitrust, and intellectual property. It offers high-end CLEs -- two-day programs, designed for small groups to be able to discuss the topics rather than sit back and listen to talking heads. (There's one today and tomorrow on litigation of mass torts; two in October will address patent litigation and antitrust law and litigatiion.)

The Sedona Conference also tries to develop the law through its Working Groups -- teams of lawyers and judges who work on focused topics, trying to develop guidelines in developing areas. Currently it has these working groups:

• WG1: Electronic Document Retention and Production
• WG2: Protective Orders, Confidentiality & Public Access
• WG3: The Role of Economics in Antitrust
• WG4: The Intersection of the Antitrust Laws and the Patent Law
• WG5: The Markman Process and Claim Construction
• WG6: International Electronic Information Management, Discovery and Disclosure
• WG7: Sedona Canada

The Sedona Conference offers many of its publications for free download (for individual use -- permission is needed to reprint). Note:

• The Sedona Guidelines for Managing Information and Records in the Electronic Age (Sept. 2005 Version) (84-pages). These guidelines have already been influential and have been cited by courts. (I learned of the Sedona Conference from the speaker on e-discovery I heard yesterday.)
• "Summary of Washington Law" (05/2005) ("Washington State Authority Regarding Open Access to Court Proceedings and Records," by Lissa Shook of Davis Wright Tremaine). (Some of this memo is superseded by the changes to GR 15 and 22 in March.)

Filed in: Sedona-Conference, electronic-discovery, complex-litigation, IP, antitrust, public-records