Keep a Record of Talks with Opposing Counsel

Here are some tips on how to confirm an understanding and clear up questions after you have a conversation with opposing counsel: Conversations with Other Lawyers, Day on Torts, Nov. 7, 2007.

What to Do When Jury Asks to Hear Testimony Again

When a jury asks to have testimony read back -- or played back from a recording -- what should the judge do? The Ninth Circuit recently vacated a conviction because the trial judge "abused its discretion by permitting the jury to rehear only a portion of a key witness's testimony without taking necessary precautions to ensure the jury did not unduly emphasize the testimony." United States v. Richard, No. 06-10377 (9th Cir. Oct. 12, 2007). Anne Reed has a good summary: Ninth Circuit To Trial Judge: It's Not Too Late To Look Like An Idiot, Deliberations, Oct. 16, 2007.

The Silent Stereotype - Anti-Semitism in the Courtroom

Deliberations looks at anti-semitism -- citing a study by the Anti-Defamation League and reflecting on what it means for trials. The Silent Stereotype, Deliberations, Oct. 18, 2007.

Expect Less From Your Jury Consultant

Tips on what to expect -- and not expect -- from a jury consultant, by Anne Reed, a jury consultant and attorney: Expect Less From Your Jury Consultant, Deliberations, Nov. 13, 2007.

The Grim Power Of Grim Evidence

Follow the link for a summary of a couple of studies that found that "Jurors presented with gruesome evidence, such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence." "The Grim Power Of Grim Evidence, Deliberations, Nov. 26, 2007.

Judge Posner And The Jury Trial

Deliberations reviews a couple of opinions by Richard Posner on trial judges' management of trials. Judge Posner And The Jury Trial, Deliberations, Dec. 5, 2007.

New Case, Old Law: The Seventh Amendment In The Ninth Circuit

Anne Reed, a Wisconsin lawyer and trial consultant, has a long post discussion a recent Ninth Circuit case on the seventh amendment right to a jury trial: New Case, Old Law: The Seventh Amendment In The Ninth Circuit, Deliberations, Dec. 10, 2007.

The case is Hale v. U.S. Trustee, No. 06-35349 (9th Cir. Dec. 10, 2007).

American Juries: The Verdict

A new book on juries covers decades of empirical research. Neil Vidmar & Valerie P. Hans, American Juries: The Verdict (KF8972 .V53 2007 at Classified Stacks). The publisher's description:

This monumental and comprehensive volume reviews over fifty years of empirical research on civil and criminal juries and returns a verdict that strongly supports the jury system. Rather than relying on anecdotes, Vidmar and Hans—renowned scholars of the jury system—place the jury system in its historical and contemporary context, giving the stories behind important trials while providing fact-based answers to critical questions. How do juries make decisions and how do their verdicts compare to those of trial judges and technical experts? What roles do jury consultants play in influencing trial outcomes? Can juries understand complex expert testimony? Under which circumstances do capital juries decide to sentence a defendant to die? Are juries biased against doctors and big business? Should juries be allowed to give punitive damages? How do juries respond to the insanity defense? Do jurors ignore the law?

Finally, the authors consider various suggestions for improving the way that juries are asked to carry out their duties. After briefly comparing the American jury to its counterparts in other nations, they conclude that our jury system, despite occasional problems, is, on balance, fair and democratic, and should remain an indispensable component of the judicial process for the foreseeable future.

Cy Pres for Class Action Leftovers

Stephen Gardner, the director of litigation for the Center for Science in the Public Interest, has a long thoughtful post about the use of cy pres in class actions. What is cy pres? When some part of the award can't be distributed to all the class members (e.g., because some of them can't be located), courts often use their equitable powers and distribute the funds to charities. Cy pres: Boon or Benefit?, Consumer Law & Policy Blog, Nov. 28, 2007.

His post is in response to Adam Liptak, Doling Out Other People’s Money, N.Y. Times, Nov. 26, 2007, which quotes several critics of cy pres.

Public Citizen Report on New York's Med Mal Insurance "Crisis"

Public Citizen | Publications - A Self-Inflicted "Crisis": New York's Medical Malpractice Insurance Troubles Caused by Flawed State Rating Setting and Raid on Rainy Day Fund:

Shortsighted policy decisions by New York’s government in the 1990s are responsible for the purported medical malpractice “crisis” in the state, according to this report released by Public Citizen, New York Public Interest Research Group and the Center for Medical Consumers. Gov. Eliot Spitzer and a task force studying malpractice are urged to focus on ways to improve patient safety and to resist pleas from the insurance industry and the state’s doctors to pare back patients’ legal rights.

See Barry Boughton, A Self-Inflicted "Crisis", Consumer Law & Policy Blog, Nov. 29, 2007.

Binding Mandatory Arbitration in Employment and Consumer Cases

The Senate is considering a bill, the Arbitration Fairness Act of 2007 (S. 1782), which would eliminate pre-dispute arbitration in employment and consumer contracts. (An identical bill in the House is H.R. 3010.) Here's a post by Richard Alderman, a professor who supports the bill (the headline is sarcastic): BMA Proponents: Consumers Don't Know What's Good For Them; the Businesses That Write the Contracts Do, Consumer Law & Policy Blog, Dec. 17, 2007.

Foreclosures over the Holidays

Public Citizen and Civil Justice, Inc. (Baltimore) are challenging the constitutionality of the mortgage foreclosure notice procedures in Maryland. Foreclosures over the Holidays, Consumer Law & Policy Blog, Dec. 21, 2007.

Halliburton Mandatory Arbitration in Employment Disputes

Halliburton, the giant defense contractor, holds employees to a policy of resolving all employment disputes in arbitration rather than in court. A couple of effects: no public access to the records, a higher win rate for the employer, and lower awards in the cases the employees do win. This policy began when Vice President Dick Cheney was the company's CEO. Stephanie Mencimer, Cheney Justice?, Mother Jones, Dec. 21, 2007.

One case prominently featured in the article is that of Jamie Leigh Jones, a 20-year old employer of KBR (at the time a subsidiary of Haliburton) who alleges she was gang-raped by her co-workers in Iraq.

Thanks: Consumer Law & Policy Blog.

Stephanie Mencimer is the author of (KF8700 .M46 2006 at Classified Stacks) (earlier post).

Cut Along Dotted Line

Photo of Civil War surgeon's kit from National Park Service.

One type of medical error (not necessarily common, but who wants it even once?) is operating on the wrong site (left leg instead of right, pinkie instead of ring finger, appendix instead of ovaries). In response, the health care industry has adopted a Universal Protocol for Preventing Wrong Site, Wrong Procedure, Wrong Person Surgery.

For more on this issue see James W. Saxton & Maggie M. Finkelstein, Can Adhesive Labels Prevent Wrong Site Surgery and Reduce Liability Risk?, 12 Widener L. Rev. 293 (2005). Mr. Saxton and Ms. Finkelstein are litigators (based in Lancaster, PA) who represent doctors, hospitals, and long-term care facilities.

See also Cases of 'Wrong-Site Surgery' Are Rare, Medicine Online, April 20, 2006 (reporting study by Dr. Mary R. Kwaan of 20 years of malpractice insurance records). Hear also Wrong Site Surgery Is Rare, Healthcare 411, April (audio interview with Dr. Kwaan; transcript is here).

Justice Department's man in Baghdad

Justice Department's man in Baghdad, Seattle P-I, Dec. 18, 2007:

An assistant U.S. attorney whose day job is defending federal hospitals from medical malpractice claims will soon find himself in a very different role: heading the Justice Department's operations in Iraq.

Phil Lynch, 56, has been appointed to a one-year stint as 'rule of law coordinator' in Baghdad, meaning he will oversee efforts to advise judges, lawyers and police officers in Iraq's nascent, overwhelmed legal system.

A little more about Lynch is in a press release from the U.S. Attorney's Office (W.D. Wash.).

Women's Prisons: Who's Watching the Guards?

State announces reforms to combat abuse in women's prisons, Seattle P-I, Dec. 20, 2007.

With rising complaints by female prison inmates of sex abuse by guards, the state Department of Corrections said it will hire more women staff members, increase the number of surveillance cameras in prisons and have the State Patrol investigate complaints.

The state has received scores of complaints about sex abuse in recent months, and a class-action lawsuit has been filed against the state by four current or former inmates.

The state has three prisons for women: the Pine Lodge Corrections Center for Women (near Spokane), the Washington Corrections Center for Women at Purdy (north of Gig Harbor), and the Mission Creek Corrections Center for Women (near Bremerton).

A class-action against the state, brought by four current and former inmates, is pending in Thurston County Superior Court. The plaintiffs are represented by Beth Colgan, of Columbia Legal Services.

See also State acts on abuse cases at women's prison, Seattle Times, Dec. 20, 2007.
Washington Corrections Center for Women

$22 million claim filed for boy starved by parents

Yesterday Snohomish County Superior Court Judge Thomas Wynne convicted a father and his girlfriend of criminal mistreatment, finding they intentionally started a four-year-old boy (who is now in foster care). Couple convicted of denying food to 4-year-old, Seattle Times, Dec. 20, 2007. Today a lawyer filed a $22 million claim against the state Department of Social and Health Services on behalf of the boy, for failing to take proper action on complaints that the boy was malnourished. $22 million claim filed for boy starved by parents, Seattle P-I, Dec. 20, 2007.

Flexcar Parking

Surely you've noted parking spots reserved for Flexcars -- there are a lot on campus as well as scattered around town in private parking lots. There are also about two dozen on Seattle streets (the signs say "carshare vehicles," not "Flexcar"). Turns out their legal status is iffy. Sure, the county contracted with Flexcar (to encourage transit use and reduce pollution) and the Seattle Department of Transportation paid for and erected the signs. But nobody amended the Seattle Municipal Code to say that using a spot is a ticketable (or towable) offense. Oops. This spot's reserved for Flexcar? Not exactly, Crosscut, Nov. 27, 2007.

Note: the UW spots are legit, and parking your own car there will get you a ticket.

Is embezzlement in the air?

Is embezzlement in the air?, Crosscut, Dec. 10, 2007. Links to two stories about indictments for stealing $1 million or more from one's employer by phonying credit card charges (and using other techniques) -- one at Milgard Windows in Tacoma, one at Microsoft and Expedia.

Seattle's role in inventing new torture techniques

Seattle's role in inventing new torture techniques, Crosscut, Dec. 17, 2007. A brief article. A professor at Reed College has a book saying that most torture innovations have come from democracies, not totalitarian regimes. The article quotes a passage about a distressing technique used by the Seattle police 1922-26.

A jury sides with BusinessWeek in a lawsuit brought by a former Microsoft director

A jury sides with BusinessWeek in a lawsuit brought by a former Microsoft director, Crosscut, Dec. 18, 2007.

A BusinessWeek reporter doing a story about how family dynamics affect the workplace interviewed the plaintiff and his psychologist. The plaintiff said that the reporter had promised not to use his name or employer in the story -- but she did. He sued. She testified there was no promise, and the jury agreed.

Side note: Judge Robert Lasnik said he would have to recuse himself if the case came to involve Microsoft because his wife owns some shares of stock. The parties agreed that it wasn't relevant. That reminds me of an article I came across recently: Ronald D. Rotunda, Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code, 34 Hofstra L. Rev. 1337 (2006), available at SSRN: http://ssrn.com/abstract=926437. Rotunda slams the "appearance of impropriety" prohibition as impossibly ambiguous.

Judge rules in favor of Avvo's online rankings

Judge rules in favor of Avvo's online rankings, Seattle P-I, Dec. 19, 2007. Judge Robert Lasnik (W.D. Wash.) yesterday dismissed the case by lawyers against Avvo.com, saying the rationgs are opinions protected by the first amendment.

"To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action," Lasnik wrote.

Lasnik also questioned why Browne would use his rating as a "Super Lawyer" by Washington Law & Politics magazine as evidence against his sub-par Avvo rating, noting that the court did not want to determine if one system was better than the other.

The 10-page order is here.

Immigrants in Seattle

They're Coming to America, Wash. L. & Politics, Winter 2008, at 22, discusses immigration to the Seattle area and profiles two asylum applicants. The print magazine has related stories.

If it was online, I'd link to Lawsuits of the Year (pp. 14-20), a somewhat flippant look at a dozen local cases, including a patent infringement case over a dog collar and a high-stakes fight over a millionaire's estate involving the Salvation Army and Greenpeace. The paper copies of this magazine are in the Reference Area.

Judge to consider violinist's claim against symphony

Judge to consider violinist's claim against symphony, Seattle Times, Dec. 15, 2007. Judge Catherine Shaffer recently dismissed two claims of employment discrimination (earlier post). The remaining claim is for intentional infliction of emotional distress.

Judge Shaffer is a Trial Ad instructor.

Mayor's son gets 3 months in casino scheme

Mayor's son gets 3 months in casino scheme, Seattle Times, Dec. 15, 2007. Jacob Nickels's attorney, Jeffery Robinson,

had asked the judge for probation, arguing that Nickels' behavior was "aberrant" and the result of a terrific lapse in judgment. "This is without a doubt the biggest mistake of my life," said Nickels, who has cooperated with the investigation and pleaded guilty in August to conspiracy to steal from a tribal casino.

Prosecutors and a representative of the Nooksack Tribe, which owns the casino, asked for five months. Judge Coughenour sentenced him to three months in a federal prison camp.

Jeff Robinson is a Trial Ad instructor; Judge Coughenour teaches Advanced Trial Advocacy.

Even Lawyers Get the Blues

The Wall Street Journal has a good article about lawyers with depression, and some responsese in the profession. Sue Shellenbarger, Even Lawyers Get the Blues: Opening Up About Depression, Wall St. J., Dec. 13, 2007, at D1.

The website includes a video interview with a young litigation partner who discusses his own bout with depression and substance abuse -- and the senior partner in the firm who helped him get treatment. (Ironically, since one message is seeking work-life balance, you have to watch a Jaguar ad to get to the video. Remember, a hot car might not be worth a lifetime of 80-hour weeks.)

For more information: Lawyers with Depression, mentioned in the article.

The article also mentions a video from the State Bar of Texas, "Practicing from the Shadows: Depression and the Legal Profession." That led me to the website for the Texas Lawyers Assistance Program, which has links to lots of information about mood disorders, stress relief, substance abuse, suicide, and more.

Locally, see the list of Counseling Resources on the law school's website.

I've tried depression and I don't recommend it -- but I do recommend getting help when you need it.

An extra note (Dec. 20): The article refers to research at the University Arizona by Connie Beck and others. That article is: Connie J.A. Beck, Bruce D. Sales & G. Andrew H. Benjamin, Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns among a Sample of Practicing Lawyers, 10 J.L. & Health 1 (1995-1996), available on Hein Online (UW restricted). It reports findings from a survey of hundreds of Washington State attorneys. Andy Benjamin is an affiliate professor at the UW.

Dec. 22: Andy offers to send a copy of the article to anyone who'd like it but doesn't have access to HeinOnline. Write to him at (gahb54|at|u.washington.edu).

Defenders say 'no' to more District Court cases

Defenders say 'no' to more District Court cases, Port Townsend & Jefferson County Leader, Dec. 5, 2007. The three-person firm that has the contract for public defense for Jefferson County had been assigned 983 district court cases through Nov. 28 -- when the county had contracted for 510. So the firms said: Enough, already! It's still accepting felony cases, but the court has assigned several cases to other local lawyers.

The article raises the issue of parity between prosecution and defense (the county has 4 prosecutors and three public defenders and pays the prosecutors better).

Thanks: Arbitrary & Capricious.

Grant County Public Defender Defends Public Defense

Responding to a story about the government asking for more prosecuting attorneys, a public defender writes eloquently about his job. (He was a deputy prosecutor for 11 years before moving to defense.) Michael E. Haas, Guest Editorial: Defender responds to comments on juvenile crime, Dec. 6, 2007:

Our job is not to roll over and play dead for the prosecuting authority. The continued vitality of our democracy demands that we vigorously test every charge, challenge every accusation even when the accused is unpopular and has been vilified in the press. Let's not forget that John Adams, one of the principal architects of the Declaration of Independence successfully defended a British officer accused of responsibility for the Boston Massacre in 1770.

Some may say that most of our clients are guilty of something. Wouldn't you hate to be the one factually innocent person in the stack that had a public defender roll over on you?

Thanks: Arbitrary & Capricious.

2 Tri-City attorneys suspended in dollars for deals scam

2 Tri-City attorneys suspended in dollars for deals scam, Tri-City Herald, Dec. 7, 2007. A contract public defender and an assistant city prosecutor allegedly told defendants in Benton County District Court that they would get lighter sentences if they made donations to the Kennewick Home Base youth program. And then they pocketed the donations. To the tune of some $160,000. They both pleaded guilty in September and are awaiting sentencing. The Washington State Bar Association has suspended them while it investigates.

The back story: Defendants got off the hook if they donated to charity, Seattle Times, Aug. 16, 2006. The two lawyers were prosecuted by the U.S. Attorney for the Eastern District of Washington. The press release announcing the indictment (Dec. 12, 2006) is here. Kennewick Defense Attorney is Arraigned in Deal Scam, KNDO, Jan. 3, 2007.

Thanks: Arbitrary & Capricious.

Boost child-welfare caseworkers by 70 percent, study says

Over the years, I've posted a number of stories about people suing DSHS for failing to supervise foster care placements or otherwise take care of vulnerable children. Now there's a study indicating that the agency is gravely understaffed. Boost child-welfare caseworkers by 70 percent, study says, Seattle Times, Dec. 11, 2007:

The state's child-welfare system is so short-handed that a recent study estimated 1,240 more workers are needed to keep up with the demand.

The Workload Study, conducted for the state and released last month, comes amid an upswing in the number of children in out-of-home care, either in foster homes or with relatives. Meanwhile, children are being neglected by their parents as overloaded state employees struggle to protect them.

Local News | Judge threatens to take over Columbia Basin salmon plan | Seattle Times Newspaper

Judge threatens to take over Columbia Basin salmon plan, Seattle Times, Dec. 11, 2007:

The federal judge overseeing efforts to balance salmon against dams in the Columbia Basin has told federal dam operators their latest effort does not appear to be any better than two previous failed plans, and said he will take over the process rather than send it back to them a third time.

In a letter, U.S. District Judge James Redden told parties in the long-running case to come to court Wednesday prepared to answer tough questions, such as whether the plans for running dams on the Columbia and Snake rivers so they don't harm salmon were based on the best available science, a demand of the Endangered Species Act.

High court gives judges discretion in sentencing

High court gives judges discretion in sentencing, Seattle P-I, Dec. 10, 2007.

The Supreme Court cases decided yesterday are Kimbrough v. United States and Gall v. United States.

Federal judges in Seattle region hand out lighter sentences

Federal judges in Seattle region hand out lighter sentences, Seattle P-I, Dec. 10, 2007:

Federal judges in Western Washington give lighter sentences than guidelines call for at 10 times the national rate. About one in five defendants get a break. Only Arizona exceeded Seattle's record, and that is likely a statistical aberration explained by the handling of deportations of illegal aliens.The average defendant convicted of a crack cocaine offense nationally in 2006 got just over 10 years in prison, according to U.S. Sentencing Commission statistics. In Seattle, crack defendants got an average of seven years.

The article discusses the practices of the U.S. Attorney's Office which, in its discretion, often does not prosecute the highest possible charges (possibly contrary to Justice Department policy). But this U.S. Attorney's Office has a heavier caseload that many, because it charges all players in drug conspiracy cases, not just the few at the top.

The article quotes Federal Public Defender Tom Hillier, who is also a UW Trial Ad instructor.

Panel allows easing of crack sentences

Panel allows easing of crack sentences, Seattle P-I, Dec. 11, 2007

The U.S. Sentencing Commission voted unanimously Tuesday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences.

The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses.

ACLU appeals ruling that pharmacists do not have to sell 'Plan B'

ACLU appeals ruling that pharmacists do not have to sell 'Plan B', Seattle P-I, Dec. 11, 2007.

The American Civil Liberties Union, Planned Parenthood and the Northwest Women's Law Center are appealing a federal judge's ruling that Washington state pharmacies do not have to sell 'morning-after' birth control pills if their pharmacists have moral objections.

Glass Cliff for Women

You've heard of the glass ceiling -- the metaphorical barrier that prevents women and minorities from rising beyond a certain point in an organization. I hadn't heard of glass cliffs, but it turns out there's a research group at the University of Exeter looking into it:

Research into the glass cliff examines what happens when women (and other minority groups) take on leadership roles. Extending the metaphor of the glass ceiling, 'the glass cliff' describes the phenomenon whereby individuals belonging to particular groups are more likely to be found in leadership positions that are associated with a greater risk of failure and criticism.

The research started with business and then moved to politics. Then the team examined law firm dynamics. Julie S. Ashby, Michelle K. Ryan & S. Alexander Haslam, Legal Work and the Glass Cliff: Evidence That Women Are Preferentially Selected to Lead Problematic Cases, 13 Wm. & Mary J. Women & L. 775 (2007), available on HeinOnline (UW restricted).

The experiment described in the article doesn't necessarily show much, but the issues are intriguing. In the experiment, participants were given profiles of three lawyers -- a man and a women with comparably high qualifications and a man who was clearly less qualified. They were also given a news story saying that the lead counsel for a case was stepping down and a new lead was to be appointed. Some participants had a story saying the lead was leaving because the case was in trouble. When a case was seen as risky, participants were much more likely to say that the woman was the best one to take it on. Why? Because they think women can handle challenges? Because they think it won't matter as much if a woman fails?

The participants in the experiments were undergraduate law students in British university. I'd be curious to see the results if they ran it with, say, mid-career U.S. attorneys.

Photo of cliff from Oregon Parks and Recreation Department: Planning.

DVD About Federal Courts and Civil Rights

The National Campaign to Restore Civil Rights says that Take Back the Courts, "made by award-winning documentarian Stanley Nelson," "exposes the negative consequences of a federal judiciary that is increasingly opposed to civil rights protections. Mr. Nelson puts a human face on what has come to be known as the 'rollback' of civil rights. The full film is 22 minutes and is an excellent teaching tool for those interested in educating friends, family, and neighbors about these issues."

The DVD is available in the law library: KF4749 .T35 2006 at Classified Stacks.

DVD About Judicial Election, Tort Reform Battle

Get your popcorn and watch a documentary about tort reform and a hard-fought judicial election. Benched: the Corporate Takeover of the Judiciary (KF8776 .B39 2005 at Classified Stacks)

chronicles the most expensive Supreme Court Race in history – the 2004 race for State Supreme Court in Illinois where over ten million dollars was spent.

"Benched" explores the underlying issue of the race – the battle over "tort reform." Critics charge that the insurance industry unfairly targeted doctors in Madison County, Illinois, raising their malpractice insurance premiums to pressure the doctors to lobby their patients and the community for "tort reform", including caps on medical malpractice awards that will only benefit the insurance industry and harm consumers. The doctors contend that they are being driven out of business by "frivolous lawsuits" while victims of medical malpractice and lawyers argue caps on law suits will deny them justice and that claims of an out of control civil justice system are corporate propaganda.

In the end, the documentary reveals the true beneficiary of this campaign for tort reform – Big Tobacco companies. Critics charge that the Philip Morris tobacco company played a role in financing the tort reform movement to get their chosen candidate, Lloyd Karmeier elected to the Illinois Supreme Court in order to have a pending 10.1 Billion dollar judgment voided by the Court.

In December, 2005, Justice Lloyd Karmeier cast the tie-breaking vote reversing the 10.1 Billion Dollar judgement against Philip Morris.

That's the description from the film's website. Makes it sound interesting, doesn't it?

Litilaw: Hundreds of Free Articles on Litigation Topics

Litilaw is a website that makes available

hundreds of recently published articles of interest to litigators and related legal professionals. All articles are full-text, written by lawyers and have been published as part of continuing legal education (CLE) seminars, in legal journals, or are of similar quality. Litilaw links to copies of articles available on the internet, or hosted by us at the author's request.

You can browse categories such as Class Actions, Criminal Procedure, or Expert Witnesses. Or you can run a search to find something more specific. (It appears to search the titles and summaries, not the full-text of articles.)

The articles tend to be practical rather than scholarly.

It's not comprehensive, of course, but the price (free!) will certainly appeal to lawyers (and others) with limited resources.

Litilaw is sponsored by Lexbe, a web-based litigation-management system.

Blocking the Courthouse Door

Here's a newish (Dec. '06) book critiquing the "tort reform" movement: Stephanie Mencimer, Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue (KF8700 .M46 2006 at Classified Stacks).

Publisher's description:

Thanks to constant political oratory against "frivolous lawsuits" and "jackpot justice," it is widely known that there's a legal crisis in this country. * * *

As a result, the lawsuit issue has moved to the political front burner, and in the past three years, state after state has responded by limiting citizens' rights to sue. * * *

But is there really a crisis? National data show that the number of civil suits is falling, not rising, and that the average damage award is also going down. Despite intense media hype to the contrary, the number of personal injury lawsuits filed every year has been tumbling for the past decade. Upon closer examination, the stories of ridiculous lawsuits usually turn out to be false or badly misleading. The crisis, in short, appears to be a phantom.

So how do we explain the scary headlines? Who's behind the "tort reform movement," and what are the real goals? Blocking the Courthouse Door will show that the movement against so-called greedy trial lawyers and irresponsible plaintiffs is the result of a concerted and successful campaign by large corporations to get this issue on the table and thus limit their own vulnerability in the civil justice system. They have spent decades, and many millions of dollars, on focus groups and Madison Avenue public relations research. They have funded institutes, sponsored academic research, bankrolled politicians, set up phony "astroturf " grassroots organizations (with chamber of commerce return addresses), and fed copy to all-too-gullible journalists.

The publisher's website includes an excerpt from the book.

Res Gestae on YouTube

Found on YouTube:: a musical recap of some Hearsay Exceptions, casting Lego figures as the declarants.

Private eyes indicted in ID-theft case

Private eyes indicted in ID-theft case, Seattle Times, Sept. 7, 2007:

State and federal agents have broken up a nationwide "pretext" identity-theft scheme involving private detectives who obtained personal information about their targets — from financial and medical records to tax returns — through deceit and lies, according to a federal grand-jury indictment unsealed Thursday.

The confidential records were purchased by attorneys, law firms, collection agents and others, and federal agents are "actively investigating" whether they might have broken the law as well, said Assistant U.S. Attorney Kathryn Frierson.

See TEN INDICTED FOR PRETEXTING IN "OPERATION DIALING FOR DOLLARS" - Defendants Would Adopt Various Identities to Get Confidential Tax, Medical and Employment Info, U.S. Attorney's Office W.D. Wash. press release, Dec. 6, 2007.

Suit against DSHS and Docs for Foster Child's Death

The foster mother has already entered an Alford plea and been sentenced for the death by dehydration of a child in her care. Now a civil suit has been filed against DSHS and two doctors who, the complaint alleges, should have noticed the child's decline in health (as well as the condition of other children in the woman's care) and reported it. Suits against DSHS seem comonplace; suing the child's doctors is unusual. The foster mother's case was in Spokane; the article doesn't say where the civil suit was filed. 2 doctors, DSHS sued in death of 7-year-old, Seattle Times, Dec. 8, 2007.

N.Y. Judge Rebukes Lawyers, Mourns Drop in Civility

Dorsey Firm Sanctioned as Part of Judge's Manifesto on Civility in Legal Profession, N.Y.L.J., Nov. 30, 2007. The judge wrote a 129-page opinion, criticizing the lawyers' conduct of discovery in a case that had settled.

Southern District of New York Judge Harold Baer opened his 129-page decision with a discussion of how "naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result."

He ended it with his observation that "partners are at times made and retained for their rainmaking skills and not for their legal skill, that the number of billable hours is not only the alpha and omega of bonuses but that these hours -- or at least the ones that count -- often exclude pro bono hours, or that who gets credit for originating a piece of business can throw a firm into turmoil and prompt internecine struggles, or that the bottom line has eclipsed most everything else for which the practice of law stands or stood to the extent that the practice of law is now frequently described as a business rather than a profession."

One of the lawyers who was the target of the judge's anger said that he was no model of civility himself, for instance mocking an attorney who asked for permission to attend church services before a deposition the judge had scheduled for a Sunday.

Beatles Diversion

A defendant who had pleaded guilty to burglary replied to a question in the pre-sentence process that asked what he thought the court should do:

Like the Beetles say, "Let it Be."

Judge Gregory R. Todd in Yellowstone County, Montana, corrected the spelling of the name of the "greatest band in rock history" and proceeded to work dozens of Beatles song titles into his order.

This was all back in February, and you could well have seen it in any number of places. But I'm sharing it, for the people who haven't seen it yet. (I'd buried it in a messy stack of old email myself.) See An Opinion Unlike Any Other, The Legal Scoop: Law Students' Perspectives on the Law, July 30, 2007.

Thanks: Jessica Van Buren.

King: No Right to Court-Appointed Lawyer in Child Custody Dispute

State-paid divorce lawyers not a right: Court rules such cases are private, civil disputes, Seattle P-I, Dec. 6, 2007.

People who can't afford a lawyer to help them navigate divorce proceedings and fight for the custody of their children don't have the right to one at public expense, the state Supreme Court ruled Thursday.

A 7-2 majority found that divorces are private, civil disputes that don't call for state-paid attorneys unless state lawmakers decide to change the law.

The controversial case drew much attention as one that could have expanded much-need legal services for poor people but also cost taxpayers a hefty sum.

The president of the Washington State Bar Association issued a statement:

This case highlights the need to greatly expand access to civil legal services in Washington, particularly when basic human needs are at stake such as in child custody disputes. Every day, people around the state appear in court without legal representation. And they often do so by necessity, rather than choice. Those individuals are also often unable to effectively present their cases in a court. Access to the justice system is a fundamental right, and no person should be denied access simply because they are poor. The WSBA will continue to work with the Legislature to expand access to our court system in Washington.

Legal Representation for Low-Income People Remains a Challenge, WSBA press release, Dec. 6, 2007.

The case is In re King, --- Wn. 2d ---, Washington Courts: majority (C. Johnson, J.), concurrence (Sanders, J.), concurrence (Madsen, J.) (Dec. 6, 2007).

U.S. Supreme Court to hear appeal of Ahmed Ressam case

U.S. Supreme Court to hear appeal of Ahmed Ressam case, Seattle P-I, Dec. 7, 2007. The Court granted certiorari today.

Federal prosecutors argue that the 22-year sentence that Judge Coughenour (W.D. Wash.) imposed was too short.

Click here to see earlier posts about Ressam's case. One links to the 9th Circuit case the Court will review. One links to an op-ed piece Judge Cougenour wrote in the New York Times.

If you want to follow the case in the Supreme Court, here's a link to the docket for United States v. Ressam, no. 07-455.

UW notes: Judge Coughenour teached Advanced Trial Advocacy here; Ressam's attorney, Federal Public Defender Thomas Hillier, is a Trial Ad instructor.

Former nursing assistant sentenced for raping paralyzed patient

Former nursing assistant sentenced for raping paralyzed patient, Seattle P-I, Dec. 7, 2007. The victim was a 33-year-old woman who had had a stroke that left her unable to speak or even open her mouth.

Superior Court Judge Julie Spector called it one of the most tragic cases she had ever seen and noted his ultimate prison term would be up to the state parole board.

"It is such a violation of a trust relationship that you still do not take responsibility for," Spector told [the defendant, Lamin] Darboe. "If it were up to me, I would never release you back into the community."

Beating on a bus: Driver didn't see — or didn't act?

A jury trial began this week in a case against King County by two people who were beaten up by a crowd of teenagers and young adults who dragged them off the bus one night three years ago. The plaintiffs say the driver should have called the police and should not have opened the rear door through which they were dragged.

Beating on a bus: Driver didn't see — or didn't act? , Seattle Times, Dec. 1, 2007. (posted 12/1/07)


Update (12/7): $250,000 verdict for couple assaulted on bus, Seattle P-I, Dec. 7, 2007.

Suing DSHS

The Olympian profiled Seattle attorney David P. Moody, who has made a specialty of suing the Department of Social and Health Services. Olympia grad targets DSHS with legal crusade: Lawyer wins $40 million from state in 7 years, Olympian, Nov. 26, 2007.

In addition to profiling Moody, the article discusses the policy question of how much the state should be vulnerable to suit. Attorney General Rob McKenna says that Washington's waiver of sovereign immunity was much greater than other states' and he favors legislation limiting the state's liability in certain circumstances. The bill discussed was 2006 SB 6215; McKenna's background sheet is here. SB 5997 in 2007 would have shielded the Department of Corrections and DSHS from liability when employees exercised reasonable care, even if errors in judgment resulted in bad outcomes.

David Moody is a former UW Trial Ad instructor.

Violinist's Case Against Seattle Symphony

Judge Catherine Shaffer (King County Superior Court) has dismissed a violinist's claims of discrimination against the Seattle Symphony. A claim for intentional infliction of emotional distress was not addressed by the motion for summary judgment. 2 claims dismissed in violinist's suit, Seattle Times, Dec. 1, 2007.

Judge Shaffer is also a UW Trial Ad instructor.

To a High Court -- Crusading Law Students

How about reading something inspirational over the winter break? Law student Ilana Mantell recommends To a High Court, "about the students who filed and won the SCRAP decision. The story behind the case is fantastic (and inspiring for law students)."

For more -- including excerpts -- see the book's website.

Within George Washington University, five law students decide to do a practical group project. They take on the Nation's Railroads and the oldest regulatory agency, the Interstate Commerce Commission. They want compliance with a new law, the National Environmental Policy Act and its application to freight rates. They want the unnecessary extraction of natural resources and the impediments to recycling analyzed and stopped. Their name: Students Challenging Regulatory Agency Procedures, SCRAP. In a stunning surprise, published in the New York Times, they petition for compliance with the law and a billion dollar refund. The legal prowess of the Commission and the Railroads confronts them. It is David versus Goliath. As author Neil Thomas Proto reveals, the five find the tools and inner persistence to meet the challenge.

It's available in the Law Library: KF228.S788 P76 2006 at Classified Stacks.

Case finally closes in 1978 slaying of 15-year-old

Case finally closes in 1978 slaying of 15-year-old, Seattle Times, Dec. 4, 2007. A DNA match that wasn't possible with the technology available at the time of the killing implicated the defendant, who has now entered an Alford plea.

Governor Appoints Justice

Governor Gregoire has named Judge Debra Stephens (Div. III, Spokane) to take the Justice Bobbe Bridge's seat on the Supreme Court when Justice Bridge retires at the end of this month. Gregoire picks Spokane jurist for high court, Seattle Times, Dec. 4, 2007.

Judge Stephens has lived in Spokane all her life and is an honors graduate of Gonzaga twice over (B.A. and J.D.). While her private practice specialized in appellate work, she taught as an adjunct at Gonzaga since 1995, covering an impressive variety of courses -- appellate advocacy, community property, state and federal constitutional law, and legal research and writing. She was appointed to Division III in April and was elected without opposition last month

The press release from the Governor's office is here. The photo at right is from Judge Stephens's profile on Division III's website.

Judge: Dog ordinance unconstitutional

Judge: Dog ordinance unconstitutional, Spokesman Review, Dec. 2, 2007:

Spokane’s “dangerous dog” ordinance is unconstitutional because it denies pet owners the right of due process, a Superior Court judge ruled Friday in a case that may have far-reaching effects.

As a matter of law, the administrative procedures used in the city of Spokane regarding “dangerous dog” determinations and appeals from those rulings violate citizens’ due process rights, Judge Robert Austin said in his ruling.

* * *

In the current system, dogs tagged as “dangerous” by the city and its contractor, SpokAnimal, are deemed to be that unless the owner can prove otherwise – flying in the face of the notion of presumed innocence.

Judge's DUI rulings eyed

Judge's DUI rulings eyed, Seattle Times, Dec. 1, 2007:

There are enough questions about the rulings of the judge presiding in the drunken-driving case against King County Councilmember Jane Hague that failed challenges of his jurisdiction in three Woodinville cases may be appealed, a King County Superior Court judge [Helen Halpert] ruled Friday.

In each of the cases before the court Friday, prosecutors had challenged King County District Court Judge Peter Nault and requested another judge. In each case, the challenge was denied, and Nault continued to handle the cases.

Prosecutors also challenged Nault in Hague's case, and Nault denied the challenge.

Army Pays $725 in Set-Aside World War II Case - New York Times

Army Pays $725 in Set-Aside World War II Case, N.Y. Times, Dec. 1, 2007.

A month after the Army said it made a mistake when it court-martialed Samuel Snow and 27 other black soldiers in World War II, the Pentagon has cut Mr. Snow a check for back pay, money withheld while he served a year in prison on a rioting conviction.

The check was for $725. No interest. No adjustment for inflation.

The court-martial stemmed from a riot -- black soldiers (in a Jim Crow Army) against Italian prisoners of war -- at Fort Lawton in Seattle. (Fort Lawton was one of the Army's main feeders to the Pacific Theater during World War II. Discovery Park is now on the site.)

I missed posting about the Army's ruling in October: 1944 Conviction of Black G.I.’s Is Ruled Flawed, N.Y. Times, Oct. 27, 2007.

The [Board for Correction of Military Records] found that the court-martial was flawed, that the defense was unjustly rushed and that the prosecutor, Leon Jaworski, a young lieutenant colonel who went on to fame three decades later as a Watergate special prosecutor, had important evidence that he did not share with defense lawyers.

The Army reviewed the case, after a resolution from the House of Representatives, inspired by Jack Hamann's book, On American Soil: How Justice Became a Casualty of World War II (D805.5.F66 H36 2005 at Good Reads). See Hamann's website for more. See earlier posts too.

McIver Case

Seattle City Councilmember Richard McIver faces trial for fourth degree domestic assault Dec. 10. This week a judge ruled that the press could obtain police documents, including the recording of a 911 conversation and witness statements. The judge denied release of a patrol car recording of Councilmember McIver.

Mr. McIver's attorney, Todd Maybrown, argued against the release of the documents because the release would violate the privacy of McIver and his wife and the pretrial publicity might make the trial unfair. He says that McIver is not guilty.

Recent stories (the information overlaps, but not entirely):

• Police documents detail events that led to arrest of Councilmember McIver, Seattle Times, Nov. 29, 2007.
• Judge rules to release Councilmember McIver police report, Seattle Times, Nov. 28, 2007.
• Police release documents in McIver domestic arrest, Seattle Times, Nov. 28, 2007.
• Judge orders release of police report in Seattle city councilman's arrest, Seattle Times, Nov. 27, 2007.
• McIver trial is in doubt: Councilman's wife won't testify, her lawyer says, Seattle P-I, Nov. 27, 2007.

  Seattle City Councilman Richard McIver could avoid a trial for allegations that he assaulted his wife if she remains unwilling to testify against him in court.
  
  Marlaina Kiner-McIver knows she could be put in jail for ignoring a subpoena, but, her lawyer said Tuesday, she has held the same position since her husband's arrest.
  
  * * *
  
  McIver's attorney, Todd Maybrown, said that without Kiner-McIver's testimony, prosecutors would have "no case at all," because there isn't any corroborating evidence that an assault occurred.
  
  "It shouldn't have been filed in the first place," Maybrown said. "It's not a provable case under any circumstances."

Todd Maybrown is also a UW Trial Ad instructor.

Judge tosses Hague's breath test in DUI case

Judge tosses Hague's breath test in DUI case, Seattle Times, Nov. 28, 2007.

The judge found that the warning the police give (as required by RCW 46.20.308) before administering a breathalyzer test to King County Councilwoman Jane Hague did not adequately warn her of the possible impact of a high reading.

[William] Kirk, Hague's attorney, argued Wednesday that application of the implied-consent law depends on drivers agreeing to the tests "knowingly and intelligently" and after "having been fully informed of the consequences."

As written, Kirk argued, the warning given to Hague was incomplete and failed to fully document the consequences of allowing the test to be administered.

"The blame doesn't lie with the State Patrol," said Kirk, but rather with the language the Legislature adopted in 2004.

A DUI suspect can still be prosecuted without breathalyzer evidence; it's just harder for the prosecution to make its case.

KCBA CLE on Trial Skills

The King County Bar Association is offering a CLE on Trial Skills Fri. Dec. 7. The faculty includes Charles Gordon, Gordon Tilden Thomas & Cordell LLP, Jeffrey Grant, Aoki Sakamoto Grant, LLP, Honorable Dean Lum, King County Superior Court, Dr. Theodore Prosise, Tsongas Litigation Consulting, Aaron Rocke, Carney Badley Spellman PS, Roy Umlauf, Forsberg & Umlauf PS, Lish Whitson PLLC, and Matthew Williams, Attorney at Law. Jeff Grant, Aaron Rocke, and Lish Whitson have taught in the UW Trial Ad Program; Jeff Grant also teaches Pre-trial Practice.

If you're a new attorney, note that KCBA discounts its CLE registrations for people admitted in 2005 or later.

If you're still a law student, even better: KCBA reserves limited spots in its CLEs for law students. All you need pay is $25 to cover the cost of materials. This is a great opportunity not only to learn important skills but also to meet and network with local attorneys. Contact Denise Medlock, DeniseM|at|KCBA.org.

Free Animal Law Symposium at Seattle U

Seattle University and SU's Student Animal Legal Defense Fund are hosting a free symposium on animal law.

Animal Law Symposium
November 28, 2007
4:30 pm – 6:00 pm
This event is FREE and open to the general public

Speakers will include:

Amanda Lee, JD

On December 7, 2005, one of the largest arrests of environmental activists in American history occurred. The FBI arrested six activists for allegedly taking part in a wide variety of violent crimes, including arson and domestic terrorism. One of the six arrested activists, Daniel McGowan, faced mandatory life in prison on charges related to two arsons in Oregon. As a result of Ms. Lee’s pre-trial motions and negotiations, the charges in the prosecution of McGowan were substantially reduced to a seven year sentence.

Ms. Lee will discuss her experiences representing defendants in “animal and eco-terrorism” cases -the types of people the defendants are, the unique challenges she faces as a lawyer with regards to strategy and picking jurors, the government's illegal wiretapping of defendants, philosophical issues, and more.

Adam Karp, JD MS

Across the nation, courts are evaluating the issue of compensatory damages awarded to those who lose their pets. Speaking on the topic of veterinary medical malpractice, Mr. Karp will explore legal recourse for pet owners, including a heightened standard of care afforded by veterinarians to their animal patients. Karp will address important questions, including:

”Can I recover for the pain and suffering of an animal?”
“What is the economic value of an animal?”
“What is the noneconomic value of an animal?”

Mr. Karp will also speak on the topic of dog-fighting. Karp is currently representing a case dealing with dog-fighting as it pertains to bankruptcy. Specifically, the case examines whether “willful and malicious injury to property/person” is a basis to avoid discharge in Chapter 7.

Elizabeth Lorraine ("Lorrie") Elliot, JD, LLM, MAT

Animal abuse takes many forms including forcing a victim of domestic violence to commit an act of violence upon their own beloved companion animal. Additionally, some victims of domestic violence remain in an abusive situation for fear of what will happen to their companion animals. Ms. Elliot will explore the connection that exists between domestic violence and animal abuse.


The Animal Law Symposium will take place at Seattle University, on the second floor gallery of Sullivan Hall. This event is FREE and open to the general public.
(Please see http://www.seattleu.edu/home/campus_community/visit_campus/ for directions to Seattle University and Sullivan Hall).

UW note: As it happens, all three speakers are graduates of the University of Washington School of Law. Adam Karp has taught Animal Law here and Amanda Lee has been a Trial Ad instructor.

Photo credit: Cheryl Nyberg

Moot Court News from All Over

Prof. Kent Streseman, who is the director of the appellate advocacy program at Chicago-Kent, has revived his blog, Mootness, that reports on moot court competitions from around the country.

One bit of news: the University of Washington team (Carrie Gage, Stephanie Knightlinger, Jeffrey Lane, Megan Larrondo, Ranjit Narayanan, Candice Tewell)
is among the 28 teams that are advancing to the finals of the National Moot Court Competition, sponsored by the Association of the Bar of the City of New York. (About 185 schools began the competition.) The UW team took it all last year. Here you can see a picture of the happy winners and, if you scroll to the bottom and click on a link, you can even see them in action in a video of the finals.

The UW also sent teams to the National Asian Pacific American Bar Association Thomas Tang Moot Court Competition,
the University of Puerto Rico Invitational Criminal Trial Advocacy Competition, and the Buffalo-Niagara Mock Trial Tournament.

And of course there have been a lot of busy students right here, too, since we had both a 2L/3L mock trial competition and (for the first time) a 1L mock trial competition. I got to be a judge for one round and was very impressed by the students.

(Corrected 11/28.)

Romney calls on judge to resign after 2 killed here | Seattle Times Newspaper

Romney calls on judge to resign after 2 killed here, Seattle Times, Nov. 25, 2007.

An offender is released from prison in Massachusetts after completing his sentence. (Prosecutors argued that he should be confined because of assaults on prison guards.) Later he (allegedly) kills a couple in Graham (Pierce County), Washington. Should we blame the judge? The governor who appointed the judge?

Scads of Empirical Studies

A couple of weeks ago, NYU hosted the Second Annual Conference on Empirical Legal Studies. Many scholars in this area are using social science research methods to explore different aspects of trials and litigation. Conference papers related to trial advocacy included:

• Kuo-Chang Huang, Does Discovery Promote Settlement? - An Empirical Answer (September 29, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=995349. Since Taiwan added discovery to its civil law system, settlements have increased.


• Seth Seabury, Inferring Beliefs from Selected Samples: Evidence from Civil Litigation (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998687. Litigants make settlement decisions based on jury verdicts in earlier cases -- but the sample of cases that actually go to trial is skewed, so this skews predictions.


• Gillian K. Hadfield, Settlement Values: How 9/11 Victims Saw the Choice between Money and Going to Court (June 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998647


• Nancy J. King, Habeas Litigation in the U.S. District Courts. 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999389.


• Jeffrey Fagan, Aaron Kupchik, and Akiva Liberman, Be Careful What You Wish for: Legal Sanctions and Public Safety Among Adolescent Offenders in Juvenile and Criminal Court (July 2007). Columbia Law School, Pub. Law Research Paper No. 03-61 Available at SSRN: http://ssrn.com/abstract=491202 or DOI: 10.2139/ssrn.491202.


• James E. Bessen & Michael J. Meurer, The Private Costs of Patent Litigation (March 2007). Boston University School of Law Working Paper No. 07-08 Available at SSRN: http://ssrn.com/abstract=983736.


• Randi Hjalmarsson, Crime and Expected Punishment: Changes in Perceptions at the Age of Criminal Majority (June 30, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1002390.


• Danton Asher Berube & Donald P. Green, The Effects of Sentencing on Recidivism: Results from a Natural Experiment (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999445.


• David S. Abrams, Marianne Bertrand, & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (July 5, 2007). Univ. of Chicago, Olin Law and Economics Program, Research Paper Series, Forthcoming Available at SSRN: http://ssrn.com/abstract=913021.


• Russell B. Korobkin & Joseph W. Doherty, Who Wins in Settlement Negotiations? (July 1, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998095.


• Claudia M. Landeo, Tort Reform and Disputes under Endogenous Beliefs (January 20, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=957753.


• Christina L. Boyd, Lee Epstein & Andrew D. Martin, Untangling the Causal Effects of Sex on Judging. 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1001748. Looking at federal courts of appeals, the researchers found that female judges were more likely to rule in favor of discrimination plaintiffs and male judges were more likely to do so if there was a woman on the panel.


• Samuel R. Gross & Barbara O'Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases (September 2007). U of Michigan Public Law Working Paper No. 93 Available at SSRN: http://ssrn.com/abstract=996629.


• Joanna Shepherd & Paul H. Rubin, The Demographics of Tort Reform (November 2007). Emory Law and Economics Research Paper No. 07-17 Available at SSRN: http://ssrn.com/abstract=967712.

  Tort reform may not affect all segments of society equally. Studies have shown that many tort reforms disproportionately reduce compensation to women, children, the elderly, disadvantaged minorities, and less affluent people. This study goes beyond tort reform's disproportionate effect on compensation, to explore whether tort reform also has a disproportionate effect on accidental death rates. We explain that, theoretically, tort reform's care-level effects and activity-level effects may disproportionately impact the accident rates of different groups. Using the most accurate, comprehensive data on medical malpractice tort reforms and state-level data from 1980-2000, we examine empirically whether tort reforms indeed have such a disproportionate effect. The results from our empirical analysis are consistent with our theoretical predictions. We find that the impact of tort reform varies substantially among demographic groups. When we consider the net effect of all the reforms in our study together, our results suggest that women, children, and the elderly do not enjoy tort reform's benefits as much as men and middle-aged people. In fact, they might even be harmed by reform.

• Herbert M. Kritzer, To Lawyer, or Not to Lawyer, is That the Question? (August 2007). William Mitchell Legal Studies Research Paper No. 82 Available at SSRN: http://ssrn.com/abstract=1004773.

  A central aspect of much of the debate over access to justice is the cost of legal services. The presumption of most participants in the debate is that individuals of limited or modest means do not obtain legal assistance because they cannot afford the cost of that assistance. The question I consider in this paper is whether income is a major factor in the decision to obtain the assistance of a qualified legal professional. Drawing upon data from five different countries (the United States, England and Wales, Canada, Australia, and Japan) I examine the relationship between income and using a legal professional. The results are remarkably consistent across the five countries: income has relatively little relationship with the decision to use a legal professional to deal with a dispute or other legal need. The decision to use a lawyer appears to be much more a function of the nature of the dispute. Even those who could afford to retain a lawyer frequently make the decision to forego that assistance. The analysis suggests that those considering access to justice issues need to grapple with the more general issues of how those with legal needs, regardless of the resources they have available, evaluate the costs and benefits of hiring a lawyer.

• Catherine T. Harris, Ralph A. Peeples & Thomas B. Metzloff, Does Being a Repeat Player Make a Difference? The Impact of Attorney Experience and Case Picking on the Outcome of Medical Malpractice Lawsuits (July 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998105.


• Christina L. Boyd, She'll Settle It: Judges, Their Sex, and the Disposition of Personal Injury Cases in Federal District Courts (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998649.


• Paul Brace, Jeff L. Yates & Brent Boyea, Institutional Structure and Judge Ideology in Tort Litigation in State Supreme Courts (July 2, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=997907.


• David F. Greenberg & Valerie West, Sentencing Americans to Death After Furman (July, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1000308.


• Elizabeth R. Tenney, Barbara A. Spellman & Robert MacCoun, Expanding the Scope of Cross Examination so that Jurors Can Infer Witness Calibration (September 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998593.


• Michelle M. Mello & David M. Studdert, Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries . Georgetown Law Journal, Forthcoming Available at SSRN: http://ssrn.com/abstract=998574.


• David A. Hyman, Bernard S. Black, Charles M. Silver & William M. Sage, Estimating The Effect of Damage Caps in Medical Malpractice Cases: Evidence from Texas (October 2007). U of Texas Law, Law and Econ Research Paper No. 106 Available at SSRN: http://ssrn.com/abstract=995649.


• Ronen Avraham & Alvaro E. Bustos, The Unexpected Effect of Tort Reform: Do Caps Delay Settlements? (June 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=997112.


• Thomas H. Cohen, Do Federal and State Courts Differ in How They Handle Civil Trial Litigation: A Portrait of Civil Trials in State and Federal District Courts (June 28, 2006). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=912691.


• Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary (August 2007). U of Chicago Law & Economics, Olin Working Paper No. 357 Available at SSRN: http://ssrn.com/abstract=1008989


• Alyna Jehle, Monica K. Miller & Markus Kemmelmeier, The Influence of Accounts and Remorse on Mock Jurors' Judgments of Offenders (July 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998122.


• Rachlinski , Jeffrey J., Johnson, Sheri Lynn, Wistrich, Andrew J. and Guthrie, Chris, "Does Unconscious Bias Affect Trial Judges?" (July 9, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999490.


• Mary R. Rose, Christopher G. Ellison & Shari Seidman Diamond, Preferences for Juries Over Judges Across Racial and Ethnic Groups (July 2, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998050. Asked whether they'd prefer a judge or jury to make decisions in four hypothetical situations, whites preferred judges by much higher margins than did blacks or Hispanics.
  

Photo from National Institutes of Health Medical Instrument Gallery.

The Business of District Courts

Judge D. Brock Hornby (D. Me.) wrote an interesting piece reflecting on what it is that federal district courts do: D. Brock Hornby, The Business of the U.S. District Courts, 10 Green Bag 2d 453, Westlaw (2007).

Beginning with the management approach of Peter Drucker, Judge Hornby asks what the courts' "customers" -- their outside constituents (lawyers, litigants, the public, Congress) -- value.

The obvious function, holding trials, is becoming a smaller and smaller part of a district judge's job. Civil filings are up, but civil trials are down. Criminal prosecutions remain high, but criminal trials are also down.

Dramatists enjoy trials. District judges enjoy trials. Some lawyers enjoy trials. Except as bystanders, ordinary people and businesses don't enjoy trials, because of the unacceptable risk and expense.

In the twenty-first century, the federal district courts' primary roles in civil cases have become law exposition, fact sorting, and case management -- office tasks -- not umpiring trials. In criminal cases, the judges' work remains courtroom-centered but, instead of trials, it has become law elaboration and fact finding at sentencing, supervising federal offenders after prison, and safeguarding the integrity of a criminal process that sends defendants to prison without trial. In 2007, that is the federal district courts' business. Trials as we have known them, and unfettered sentencing discretion, are not coming back.

Id. at 468.

Courtroom photo: U.S. District Court for the District of Maine.

Justice Report Slams King County Jail

Justice Report Slams King County Jail, KPLU, Nov. 21, 2007.

The Justice Department has delivered a stinging report over health conditions in the King County Jail. The report charges inmates rights are being violated, but county leaders disagree.

The KPLU story links to both the 27-page DOJ report and King County's response.

DOJ's Civil Rights Division began the investigation a year ago, under the Civil Rights of Insitutionalized Persons Act, 42 U.S.C. §© 1997-1997j.

Evaluators in Child-Custody Cases Scrutinized

I heard an interesting story on NPR this evening: Evaluators in Child-Custody Cases Scrutinized, All Things Considered, Nov. 21, 2007.

Psychologists and other mental health professionals are increasingly playing a role in child custody disputes.

Using a battery of psychological tests and expert judgment, psychologists make recommendations about which parent should have custody.

Those decisions are accepted by judges more than 90 percent of the time, but critics say the tests are flawed and the decisions are often more personal than professional.

See earlier post about local child custody evaluators.

Spokane man whose son died of methadone sues supplier's family

Spokane man whose son died of methadone sues supplier's family, Seattle Times, Nov. 21, 2007.

The plaintiff's 17-year-old son died after his friend, also 17, gave him methadone. The suit is against the friend's mother and alleges that she failed to secure a medicine cabinet, despite her daughter's past theft of medications from there.

Jury Duty Stamp

This fall, the US Postal Service released a stamp honoring jury service. USPS Stamp Release: Celebrity Jurors Help Postal Service Issue Jury Duty Stamp, press release, Sept. 12, 2007.

Supplies are limited -- only 40 million printed -- so get yours soon!

Evidence Of Injustice, FBI's Bullet Lead Analysis Used Flawed Science To Convict Hundreds Of Defendants - CBS News

Last night's "60 Minutes" opened with a story about the impact of a discredited forensic tool used by the FBI: Evidence Of Injustice, FBI's Bullet Lead Analysis Used Flawed Science To Convict Hundreds Of Defendants, 60 Minutes, Nov. 18, 2007.

For 40 years, the FBI tested bullet fragments and compared the lead content to other bullets, in the believe that bullets from the same batch would have distinctive chemical attributes (and those from separate batches would be different). But then in 1998, William Tobin retired from the crime lab. This formal chief metallurgist didn't drop metallurgy in retirement: instead he began a study of bullet lead analysis. Contrary to prior assumptions, he found that the lead chemistry could vary within a batch and match across batches.

In 2002, the FBI asked the National Academy of Sciences to do an independent study. Its National Research Council came back with a report that also questioned bullet lead analysis. A year later, the FBI told police departments and national associations of prosecutors and defense attorneys that it wouldn't run the tests anymore.

But what about the people who had been convicted based on this evidence over the prior decades? No one made any effort to contact them to say that there was a problem.

60 Minutes and the Washington Post teamed up with the Innocence Project and a team of summer associates from a Wall Street law firm to look for cases in which bullet lead testimony was a factor. They found 250 -- and believe that's just a fraction.

In one case, the defendant has always maintained his innocence. The public defender of his codefendant agrees. The codefendant told his lawyer 20 years ago that he had committed the murders alone, but the lawyer kept the confidence until after his client had died (a suicide in prison). When he went forward, a judge reported him to a disciplinary board. The defendant who asserts his innocence is still in prison.

On Friday, the FBI * * * acknowledged that it had made mistakes in handling bullet lead testimony and should have done more to alert defendants and the courts. As a result of the 60 Minutes-Washington Post investigation, the bureau said it will identify, review and release all of the pertinent cases, and notify prosecutors about cases in which faulty testimony was given.

The FBI also says it will begin monitoring the testimony of all lab experts to make sure it is based on sound scientific principles. FBI Assistant Director John Miller said, "We are going to the entire distance to see that justice is now served."

The Washington Post coverage ("Silent Injustice") is here.

Driver Who Killed Officer Sentenced

Officer's life honored as killer gets 20 years. Mary Jane Rivas had a long record of misdemeanor and felony convictions for various offenses when she plowed into Officer Joselito Barber's patrol car at 23rd and Yesler at 80 miles per hour.

Rivas, 32, had pleaded guilty to vehicular homicide and possession of cocaine, and also agreed that she should serve an exceptionally long prison term.

In imposing the sentence, Superior Court Judge Harry McCarthy added a five-year 'special enhancement' to Rivas' sentence based on her recent release from prison before the accident. Only 10 days earlier Rivas had been released from prison for possession of cocaine.

Rivas was one of three former prison inmates who, while under the state's version of probation, were involved in incidents that resulted in the deaths of three Seattle-area law enforcement officers in 2006. The incidents prompted Gov. Christine Gregoire to order the state Department of Corrections to review its conditional-release policies.

Judge Harry McCarthy is also a UW Trial Ad instructor.

Plaintiffs' Bar Symposium

In the spring of 2006, New York Law School's Center for Professional Values and Practice hosted a symposium on The Plaintiffs' Bar.

It's obviously much too late to go to the symposium, but some of the papers were published in the New York Law School Law Review (Volume 51, Issue 2 (2006-2007)) and are very interesting:

Anita Bernstein, Marc Galanter & Tanina Rostain, Introduction, 51 N.Y.L. Sch. L. Rev. 209 (2006-2007)

Mary Nell Trautner, How Social Hierarchies Within the Personal Injury Bar Affect Case Screening Decisions, 51 N.Y.L. Sch. L. Rev. 216 (2006-2007)

Sara Parikh, How the Spider Catches the Fly: Referral Networks in the Plaintiffs' Personal Injury Bar, 51 N.Y.L. Sch. L. Rev. 243 (2006-2007)

Stephen Daniels & Joanne Martin, Texas Plaintiffs' Practice in the Age of Tort Reform: Survival of the Fittest – It's Even More True Now,51 N.Y.L. Sch. L. Rev. 285 (2006-2007)

Robert S. Peck & John Vail, Blame it on the Bee Gees: The Attack on Trial Lawyers and Civil Justice. 51 N.Y.L. Sch. L. Rev. 323 (2006-2007)

Richard L. Abel, How the Plaintiffs' Bar Bars Plaintiffs, 51 N.Y.L. Sch. L. Rev. 345 (2006-2007)

I found Parikh's piece particularly interesting. Based on research she did for her doctoral dissertation, it looks at referral patterns in the Chicago plaintiffs' bar. She groups lawyers hierarchically, based on the size of their average cases. Sometimes a low-end lawyer will refer "up" to a lawyer whose practice is specialized or better able to handle a "big" case (e.g., a firm that often takes complex product liability cases instead of automobile accident cases). The referring lawyers often depend on their cut of the eventual contingent fee -- which can be substantial. But many high-end and elite lawyers cultivate referral partners who are from firms or practices that don't accept fee splitting. Higher-end lawyers refer "down" when they have cases that they don't want to take.

(Washington's rule on lawyers from different firms sharing fees is RPC 1.5(e). The Illinois rule is 1.5(f)-(h) of that state's RPC. Illinois is explicit about fees for referrals, while Washington says that the lawyers who split fees must be jointly responsible for the representation. It allows referral fees to a county or state bar referral service.)

Abel looks at many aspects of the plaintiff-attorney relationship. Plaintiffs and attorneys often have very different interests. He comments that a justification for contingency fees is the lawyer's risk that the case is lost and no money is collected -- but says that lawyers select cases carefully enough that they may not have as much risk as the argument suggests. His argument is bolstered by Parikh's work on referrals -- the referring lawyers often serve to screen out the cases that have little chance of success.

Abel also has a section on the financial services that lend plaintiffs (or plaintiffs' attorneys) money pending collection of a judgment (e.g., during an appeal). The services charge amazingly high rates, often requiring the borrower to repay twice the amount borrowed (or more!). One company boasts that it has failed to collect only 2% of its loans -- so, again, the risk of nonpayment is not the justification for the whopping interest rates.

Arbitrary Justice: The Power of the American Prosecutor

In Arbitrary Justice: The Power of the American Prosecutor, Professor Angela Davis (American University Washington College of Law) "examines the expanding power of prosecutors, from mandatory minimum sentencing laws that enhance prosecutorial control over the outcome of cases to the increasing politicization of the office. Drawing on her dozen years of experience as a public defender, Davis demonstrates how the everyday, legal exercise of prosecutorial discretion is responsible for tremendous inequities in criminal justice."

The book's website has lots of information, including chapter summaries (and a pdf of all of Chapter One) and reviews.

The book is available in the library: KF9640 .D38 2007 at Classified Stacks.

Prof. Davis organized a conference at AU last month: The American Prosecutor - Power, Discretion and Accountability. C-SPAN aired much of the conference, and you can watch clips here.

Blogging Jurors

Anne Reed (lawyer, trial consultant, and the author of the Deliberations blog) was interviewed last week on a Milwaukee radio program. The three-minute piece about jurors who blog is very interesting.

Reed says that a lot of trial attorneys are oblivious to how many of their potential jurors are online, and so they make mistakes and miss opportunities. For instance, judges routinely instruct jurors not to talk about the case or read the newspaper, but the jurors don't hear that as meaning they shouldn't blog about it or read the online sources they usually do; Reed recommends that the cautions be explicit. She also recommends that lawyers ask jurors if they have blogs, MySpace pages, Flickr pages, etc. -- and if so, how the lawyer could find them. You can learn a lot about people!

She also talked a little about a recent California appellate case that threw out a jury's verdict. A juror blogged that he had said his profession was "project manager" because that sounded better than "lawyer" and he wanted to be on the jury -- and then he boasted online that he had steered the jury too its verdict. Reed wrote about that case (People v. McNeely) here (June 19, 2007) and here (June 21, 2007).

Along the same themes as the radio interview, see Reed's posts: Jurors And Social Networking? So What?, Deliberations, Nov. 1, 2007; Jurors Who Read Blogs, Deliberations, June 27, 2007; Blogging Jurors, Part III: The Good, June 22, 2007.