Wednesday, February 28, 2007

Study of Pro Se Felony Defendants

A new study looks at felony defendants in state and federal court. Contrary to common beliefs that criminal defendants who choose to represent themselves are mentally ill and/or foolish, the author finds that they do pretty well -- sometimes even better than represented defendants. Erica J. Hashimoto, Defending the Right to Self Representation: An Empirical Look at the Pro Se Felony Defendant. North Carolina Law Review, Forthcoming (45 N. Car. L. Rev. 423). Available at SSRN:

Here is Prof. Hashimoto's abstract of the article:

Why would a criminal defendant waive the right to counsel and proceed pro se? Conventional wisdom assumes that there is no good reason for a defendant to choose self-representation, and those who make that choice are therefore either mentally ill or foolish. Courtroom proceedings in cases of high-profile pro se defendants like Colin Ferguson and, more recently, Zacarias Moussaoui and John Muhammad, have only increased the dominance of this prevailing view. Even the Supreme Court has assumed that the right to self-representation in practice hurts, rather than helps, criminal defendants. Until now, however, no empirical study has examined the phenomenon of self-representation.

This Article presents the results of the first comprehensive study of pro se felony defendants. The data clearly refute both the assumption that most felony pro se defendants are ill-served by the decision to self-represent and the theory that most pro se defendants suffer from mental illness. Somewhat surprisingly, the evidence establishes that pro se felony defendants in state court do just as well as represented felony defendants, and the vast majority of pro se felony defendants - nearly 80% - displayed no signs of mental illness. The results of the study also provide an alternative explanation for the pro se phenomenon, suggesting that at least some defendants choose self-representation because of legitimate concerns about counsel. In short, the data in this Article expose the fallacy of the prevailing view of pro se felony defendants and demonstrate that the right to self-representation in fact serves a vital role in protecting the rights of criminal defendants.
Some decisions to appear pro se are based on concerns about court-appointed counsel (often underfunded and overworked and sometimes just incompetent). Often the pro se defendants have requested other counsel.

Other decisions may be based on ideological grounds. For instance, 20% of federal pro se defendants are accused of tax crimes, but only .7% of represented defendants are.

Prof. Hashimoto concludes with recommendations for actions courts should take to ensure that the decision to go pro se is knowing and voluntary.

Thanks: Michael Heise, Empirical Legal Studies.

Pro Se Defendant Held to Pro Se Choice

The study of pro se defendants (post earlier today) reminds me of a recent Washington case where the defendant who chose to represent himself lost on appeal, forced to live with the consequences of his waiver of counsel: State v. Modica, 149 P.3d 446 (Wash. App. Dec. 26, 2006), Findlaw link.

  • Procedural sequence:
    • Three weeks after arraignment, the court appointed new counsel on Mr. Modica's request.
    • Modica didn't want the delay that the new lawyer asked for to prepare, so he asked to proceed pro se. After "a lengthy colloquy," the court granted his request.
    • Two weeks later, the prosecution added another count to his charges. Several days later the judge who was to be the trial judge encouraged Modica not to proceed pro se and to get a continuance so a new attorney could prepare. The judge did not discuss with Modica the new count. Modica still wanted to go pro se.
    • A couple of days later, after a jury was empanelled, Modica moved for reappointment of counsel, and the judge denied his motion.
    • He was convicted.
  • On appeal, Modica (still pro se) argued that (a) the court's acceptance of his waiver of the right to counsel and (b) the court's failure to appoint new counsel when he requested it both deprived him of the right to counsel. Division 1 (Dwyer, J.) disagreed. Modica's waiver was knowing and voluntary. He made a strategic decision to go pro se rather than give a new lawyer time to prepare. By the time he made his request for counsel, the jury was already in place and a key witness was being held on a material witness warrant.
  • Another issue: Could the prosecution use a recorded telephone conversation between the defendant in jail and his grandmother on the outside? Answer: yes. There wasn't a reasonable expectation of privacy under the circumstances: Each call from the jail begins with an automated message that it is being recorded. The recipient has to press a button on her phone after listening to that message before the call goes through. Signs in the jail caution inmates that calls are subject to monitoring.

Curmudgeon's Guide to Practicing Law

In The Curmudgeon's Guide to Practicing Law, Mark Herrmann -- a law firm partner and part-time law professor -- offers advice to new lawyers in a cranky style that amuses while getting across his points.

Chapters are:

  • How to Write: A Memorandum from a Curmudgeon
  • How to Fail as an Associate
  • What They Didn’t Tell You in Law School
  • The Curmudgeonly Secretary
  • The Curmudgeon’s Law Dictionary
  • Seven Hours Locked in a Room
  • The Curmudgeon Argues
  • Dress for Success
  • How to Enter Time So That Clients Will Pay for It
  • The Curmudgeon on Couth
  • The Curmudgeon on Clients
  • The Curmudgeon’s Guide
    to Building a Practice
The book is published by the ABA, whose web page for the book also includes an interview with the author (I enjoyed to it while I was walking the dog last weekend) and (bonus!) a pdf of chapter 1, on writing.

Diane Murley (who practiced law a lot longer than I did before finding the joys of law librarianship) says (Law Dawg Blawg, Nov. 3, 2006):
This slim volume of blunt, but humorous, advice for new law firm associates is right on target. The curmudgeon's advice covers assignments that a new associate is likely to receive, including research, writing, defending depositions, and arguing an appeal, as well as everyday matters such as billing, etiquette, what to expect from an assistant, and how to treat a client.

I recommend this book for anyone about to begin work at a law firm as an associate or summer associate, and for any second- or third-year law student. The cover price seems high, but it is worth it to have this information before you begin employment with a firm you want to impress. The price is discounted for members of the ABA's section of litigation or law student division.
And it's also in the library: KF300 .H47 2006 at Classified Stacks. (It's currently checked out, but that's a temporary condition.)

Tuesday, February 27, 2007

Law, Psychology, and Insurers

Law, Psychology, and Insurers, Empirical Legal Studies, Feb. 15, 2007:

Chris Guthrie (Vanderbilt) and Jeff Rachlinski (Cornell) recently circulated an interesting paper, 'Insurers, Illusions of Judgment & Litigation,' that presents results from original research on insurers' abilities to resist indulging in cognitive illusions that pose a threat to legal decision making.
The post links to the article on SSRN.

Statistical Analysis of Sup. Ct. Clerk Selections and Claims of Justice Bias

Statistical Analysis of Sup. Ct. Clerk Selections and Claims of Justice Bias, Empirical Legal Studies, Feb. 16, 2007:

In a paper that has already received well-deserved public attention, 'Where Have All the Women Gone? 'Random Variation' in the Supreme Court Clerkship Lottery,' Professors David Kaye (Law, ASU) and Joseph Gastwirth (Statistics & Econ., George Wash. U.) hold Supreme Court Justices' clerk selections up to empirical light in an effort to assess recent claims of gender disparity.
The post links to the article on SSRN.

Study of Female Attorneys' Success Before SCOTUS

Sara Benesh summarizes a new study looking at the success rates of female attorneys before the United States Supreme Court. The authors found that teams with a higher percentage of women lost more often than others. The poor response to women was stronger among conservative justices. Female Attorneys Before the Supreme Court, Empirical Legal Studies, Feb. 23, 2007.

One commenter raised the point that the women's cases might have been weaker on the merits. Benesh explained that the study's authors did use some variables that could serve some sort of proxy for strength of case -- for instance, the number of amici supporting that side, whetehr the Solicitor General supported that side. They also looked at experience and qualifications of the litigation teams.

The commenter also suggested that representing respondents might correlate with losing. (Since the Court accepts review of so few cases, it might only accept cases it's more likely to reverse.)

The study is "Have We Come a Long Way Baby: Female Attorneys before the United States Supreme Court," by ohn Szmer, (UNC-Charlotte), Tammy Sarver (Benedictine) and Erin Kaheny (UW-Milwaukee). A Word copy is linked from the blog post.

What Judges Don't Say: The Challenge to Content Analysis

Guest blogging on Empirical Legal Studies, Prof. Carolyn Shapiro (Chicago-Kent) muses about What Judges Don't Say: The Challenge to Content Analysis, Feb. 26, 2007.

When judges summarize the facts of a case, they have to pick and choose -- they don't reproduce entire trial transcripts -- so what can what they don't say tell us? Shapiro writes:

But it seems to me that the question of whether judges -- consciously or unconsciously -- leave out (arguably) relevant facts is directly relevant to several points of great interest to scholars as well as to lawyers. First, it is directly relevant to the question of how judges decide cases. Second and relatedly, it may shed light on the extent to which they are political in their decisionmaking. Third, it should, I think, force hard thinking about the normative question of what we want judges to do. Do we want them to make predictions about how juries will decide? Do we want them to announce rules of law applicable in the future? Do we want them to focus scrupulously but narrowly on the case before them? Are these goals inconsistent with each other?

(Along the way, she cites critiques of judges' application (or misapplication) of summary judgment standards in employment discrimination cases.)

A few people have posted interesting comments as well. Frank Cross (University of Texas) says he is studying judges' decisions about what precedents to cite, using the cases cited in briefs as a baseline. Sara Benesh (Univ. of Wisconsin - Milwaukee) says that she is studying confession cases to see what factors the judges discuss.

Monday, February 26, 2007

Council President's Son Sues City

Seattle City Council President Nick Licata is working to improve pedestrian safety in the city. Meanwhile, his 18-year-old stepson is suing the city because of injuries to him when he was hit by a car on his way to catch a bus three years ago. He was in a coma for months and has permanent brain damage. Pedestrian safety becomes personal for councilman, Seattle Times, Feb. 24, 2007.

Licata isn't the only person in City Hall with a personal interest in pedestrian safety:

David Della's chief of staff, Tatsuo Nakata, was fatally struck by a motorist in November. Peter Steinbrueck was hit by a car at age 11, lapsed into a coma and spent a year mending a broken body. Jean Godden was nearly run over as a child and escaped with bruises.
Id. Following advice from Seattle's Ethics and Elections Commission, Licata may particate in Council discussions of pedestrian safety, but may not attend briefings by the Law Department concerning the City's litigation strategy and may not share confidential information he obtains as part of his Council work with his stepson. Lawsuit raises ethics issues, Seattle Times, Feb. 24, 2007.

Photo by Tina Ching. (I am using the photo to represent the issue of pedestrian safety generally, not any particular driver or pedestrian.)

Hells Angels case going to trial

The federal government is prosecuting current and former members of the Washington Nomads chapter of the Hells Angels under RICO. Defendants are Richard "Smilin' Rick" Fabel, Joshua Binder, Rodney Rollness, and Ricky Jenks. "Prosecutors allege a laundry list of crimes perpetrated by the four defendants between 1996 and 2006" -- extortion, robbery, kidnapping, murder, and more. Chief Judge Robert S. Lasnik is presiding. Hells Angels case going to trial, Seattle Times, Feb. 26, 2007.

One of the defense lawyers in Trial Ad instructor Todd Maybrown. (See list of counsel on calendar.) The U.S. Attorney's Office press release from when the men were indicted (Feb. 14, 2006) is here.

In a separate case, on Friday, four Hells Angels members were sentenced in a Nevada district court -- and charges were dismissed against 36 other club members -- for their role in a brawl with another biker gang at a casino; two others had already been sentenced. Three people were killed in the brawl (two Hells Angels and a Mongol) and a dozen were hurt. The six all pleaded guilty or no contest. (One guilty plea was to "battery in the aid of of racketeering.") The longest sentence was 51 months. 4 Hells Angels sentenced in Las Vegas, Seattle P-I, Feb. 23, 2007.

Interested in RICO prosecutions? I recommend a recent "Justice Talking" program: Organized Crime in the 21st Century, Justice Talking, Jan. 1, 2007 (site includes audio, a transcript, some links, and references to several books.

Schierman Trial Postponed

On Friday, a judge granted the prosecution's request to postpone until September Conner Schierman's trial for allegedly killing four people and burning their home. (It was scheduled for March 26.) The defense opposed the delay, saying that it would deprive Schierman of his right to a speedy trial. Trial of suspect in Eastside deaths will be delayed until September, Seattle Times, Feb. 24, 2007.

In deciding to delay the trial, Judge Gregory Canova said it was nearly unheard of for a death-penalty case to go to trial in eight months and that the state crime lab appeared to be working diligently to analyze evidence.

The fact that prosecutors are seeking the death penalty will likely prolong the trial, which could last for two months, Canova estimated Friday. Jury selection, in which up to 3,000 jurors could initially be summoned, could last six weeks before testimony even begins, he said.
Photo: Tina Ching

Friday, February 23, 2007

Empirical Studies on Juries, Malpractice

Various commentators have pointed to two counties in Illinois as particularly bad for med mal defendants, dubbing them "judicial hellholes." News stories reported that the runaway malpractice juries were responsible for dozens or scores of doctors leaving those counties.

Neil Vidmar and colleagues examined these claims empirically. Their results are summarized in Neil Vidmar, Russell M. Robinson II & Kara MacKillop, "Judicial Hellholes:" Medical Malpractice Claims, Verdicts and the "Doctor Exodus" in Illinois, 59 Vand. L. Rev. 1309-1342 (2006), Westlaw link, LexisNexis link. (The law review article is based on a longer report, Neil Vidmar, Medical Malpractice and the Tort System in Illinois: A Report to the Illinois State Bar Association(2005).) Their conclusions?

The data reported in this Article provide no support for the "hellhole" label. Jury trials and plaintiff verdicts were infrequent, and, since 1992, only two verdicts exceeded a million dollars, one of which was overturned on appeal.

Cook and DuPage counties, which account for almost half of Illinois's population and two thirds of its doctors, experienced no increase in medical malpractice filings between 1994 and 2004. Plaintiff win rates did increase and so did the average jury verdict. * * *

* * * Using official statistics of the AMA and statistics from an independent source, we found absolutely no support for the claims that the net number of doctors in Illinois has decreased. * * *

A postscript to this Article is that on May 25, 2005, after highly contentious hearings, the Illinois legislature passed Senate Bill 475 placing a $ 500,000 cap on the total of all non-economic damages in medical malpractice verdicts. The cap thus includes not only pain and suffering but other elements such as disfigurement, loss of a normal life, consortium, and wrongful death. It is uncertain that the legislation will survive a legal challenge, since prior Illinois case law has stated that these latter elements of damages have economic components. To the extent that the legislative decision was made on claims of tort reform advocates concerning trends in the tort system and an exodus of doctors from Illinois, the bill is based on unsupported empirical foundations.
Id. at 1341-42.

This article is part of a symposium that also includes:
  • James F. Blumstein, Medical Malpractice Standard-Setting: Developing Malpractice "Safe Harbors" as a New Role for QIOs?, 59 Vand. L. Rev. 1017 (2006).
  • David A. Hyman and Charles Silver, Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid, 59 Vand. L. Rev. 1085 (2006).
  • Neil Vidmar, Kara MacKillop, and Paul Lee, Million Dollar Medical Malpractice Cases in Florida: Post-Verdict and Pre-Suit Settlements, 59 Vand. L. Rev. 1343 (2006).
  • Shari Seidman Diamond, Mary R. Rose, Beth Murphy, & Sven Smith, Juror Questions During Trial: A Window into Juror Thinking, 59 Vand. L. Rev. 1927 (2006).

Discovery BEFORE the Suit Is Filed

Ordinarily, a lawsuit is commenced before the parties begin taking depositions, sending out interrogatories, and so on. Fed. R. Civ. P. 27 allows depositions to "perpetuate" testimony; it's been interpreted to cover only situations where a witness is likely to die or otherwise become unavailable before the action is filed. But in Texas, a civil rule adopted in 1999 explicitly allows presuit depositions (1) to preserve testimony (as in the federal rule) OR (2) to investigate a potential claim.

Prof. Lonny Hoffman (Univ. of Houston) conducted an empirical study of the rule in action. He makes the point that access to information is an important component of access to justice. How can you know whether you have a viable cause if the other party has a lock on all the relevant information?

Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery, 40 U. Mich. J.L. Reform 217-280 (2007). Here's the abstract (I broke it into shorter paragraphs to make it easier to skim online):

What is the relationship between access to information and access to justice?

Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another.

The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been seriously considered as a factor bearing on access to court. Along with a lack of treatment of the doctrinal sources of authority, no attempt has been made by academic commentators or by those most closely involved in civil procedural reform to gather empirical evidence to determine how important the right to take presuit investigatory discovery is to the institution and maintenance of civil suits.

This Article seeks to fill these vital gaps that exist in the literature and in the public debates, more generally, over access to justice. After examining the available authority in the federal and state courts, the author gathers and reports on original empirical research conducted on the use of presuit investigatory discovery by private parties. That data comes from Texas, where the state rule provides the broadest grant of authority to prospective litigants to invoke judicial process for investigatory purposes. The empirical evidence from Texas may reasonably be read as indicating widespread use of the state’s presuit discovery rule: one out of two lawyer and judge respondents reported at least one experience in which a presuit deposition was taken. Relatedly, it appears that approximately sixty percent of the time the deposition was taken to investigate a potential claim before suit was filed; the remaining forty percent of depositions were secured for the purpose of perpetuating testimony.

Examining the available data, the author argues that there are good reasons to believe that the perceived need to satisfy formal legal requirements for bringing suit, as well as the pull of practical considerations, may plausibly explain the use of the state’s presuit discovery rule. Read in this manner, the empirical evidence suggests that an important relationship exists between access to information and access to justice.
The journal's website has the abstract only. A version of the paper is available for download from SSRN here (U of Texas Law, Public Law Research Paper No. 88, U of Houston Law Center No. 2006-W-04, Feb. 2006).

Microsoft's High-Stakes Patent Litigation

A federal jury in San Diego found that Microsoft had infringed patents of Alcatel-Lucent (a French company) and ordered it to pay $1.52 billion in damages -- the larges patent-infringement verdict in the history of patent law. Not surprisingly, Microsoft plans to appeal. It also has a separate case in which it is suing Alcatel. This highlights the stakes in the pending Supreme Court case between Microsoft and AT&T. Patent case hits Microsoft with $1.5 billion penalty, Seattle Times, Feb. 23, 2007.

Eastside Crime Trends

Police chiefs from Bellevue, Redmond, and other Eastside cities met with Sen. Patty Murray to describe their concerns. Eastside police challenged by ID fraud, car thefts, drugs, Seattle Times, Feb. 23, 2007.

One trend is a sort of commute -- only instead of commuting from Shoreline to Redmond to work at Microsoft, some individuals are traveling from, say, Everett to Bellevue to steal a car and then to Kent to sell it. "Virtually everyone the police arrest is a meth addict," said one leader.

Since the federal government has tightened borders, law enforcement here is seeing more large-scale marijuana growing.

Many crimes involve multiple jurisdictions. For instance, many stolen goods go to Portland.

Is that fake fur — or is it Fido?

An investigtion by the Humane Society of the United States has found coats whose labels said their trim was "faux fur" actually had trim made from dog fur. Is that fake fur — or is it Fido?, Seattle Times, Feb. 23, 2007.

The article doesn't mention any litigation, but it says that "Intentionally importing and selling dog fur is a federal crime punishable by a $10,000 fine for each violation," and "Mislabeling fur is a misdemeanor punishable by a $5,000 fine or a year in prison. Fur valued at less than $150 is not required to be labeled."

I don't have the time to research it, but I wonder who is responsible for enforcing these laws -- Federal Trade Commission, I'd guess. Have there been any prosecutions?

Thursday, February 22, 2007

DUI Client's Lawyer Picks Up a DUI

While Retrieving Drunken Client, Lawyer Is Busted for Drunken Driving, AP (, Jan. 30, 2007. Who hasn't done a dumb thing you later regret?

Madison police called a lawyer about 2 a.m. to pick up his client, who had been arrested for drunk driving. The officer asked the lawyer if he had been drinking, and said that he could only come if he had no alcohol in his system. The lawyer was sure his blood-alcohol concentration was below 0.08%, so he went. But he'd had a couple of drinks when he was out and then a couple of more after he got home, so, even though he'd been asleep awhile, he still scored 0.09% when given a breath test.

"If there's anybody who should have known better, it was me," he said. "All I can do is apologize to my client, my family and my community."
The good news is he's willing to climb out of bed to help a client in the middle of the night. The bad news is he wasn't quite ready to drive.

Wednesday, February 21, 2007

Judge Critiques Reversal Rate Study

In the October issue of the King County Bar Bulletin, Seattle lawyer Frederick P. Corbit presented the results of his study of local judges' reversal rates in the Washington Court of Appeals (see earlier post). Now a judge responds with an analysis of the limitations Corbit's study and of any such study. John P. Erlick, Judicial Reversal Rates: What Do They Tell Us?, B. Bull., Feb. 2007. (Note: after the March issue is posted, this article's URL will be this.)

Judge Erlick emphasizes the limits of a study that tries to measure the performance of trial judge by counting how many times their cases are reversed.

  • Appeals vary by subject. For instance, many more criminal than civil cases are appealed, but a lower percentage of criminal appeals are successful. If a superior court judge has a criminal rotation during the period studied, he or she will probably have a lower than average reversal rate.
  • Who's the judge? The appellate decision will list as the lower court judge the judge who entered the judgment. But the action that's reversed might be something done by the judge who presided at trial or a judge who ruled on a pretrial motion a year before trial.
  • What's a reversal? If a case is affirmed on six issues but reversed and remanded on one, is that counted as a reversal?
  • How do you define the rate of reversal? Only a very small portion of dispositions are appealed. If a judge handles a couple of hundred cases, including summary dispositions, cases that settle, and trials that are never appealed, it's a skewed picture to only look at the number of reversals as a percentage of the number of appeals.
Interesting comments -- not just for this particular issue, but for the challenges in empirical research generally. And Judge Erlick's comments give a useful glimpse into the work of a trial judge.

Monday, February 19, 2007

Tuesday's Lunchtime Choices

Tomorrow has a couple of trial-practice-related programs during the lunch hour:

  • Michael Shadow, a well-respected consultant on effective speaking, is presenting a workshop -- courtesy of Career Services and WSTLA.
  • Federal Public Defender Tom Hillier is speaking about his experience representing Ahmed Ressam ("the Millennium Bomber") (Forum on Law and Policy).
I wouldn't want to discourage anyone from attending the library's regular Tuesday Library Lifesavers (this week: selecting a database on Westlaw and starting points for foreign and international legal research) -- but these sound very interesting too.

Big Attorney Fees in Katrina Case

Mississippi had worked out a settlement with State Farm over hundreds of lawsuits and thousands of disputed claims following the insurance company's refusal to pay for damage caused by Hurricane Katrina's storm surge. The lead lawyer representing the state was Richard "Dickie" Scruggs, who received a lot of publicity for his work in the tobacco litigation -- and criticism for the size of his fee award. Katrina Suit May Net Lawyers Up to $46 Million, AP (, Jan. 26, 2007.

Friday, February 16, 2007

Mistrial Declared After Lawyer Failed to Finish Closing Argument

Mistrial Declared After Lawyer Failed to Finish Closing Argument reports the AP (on, Jan. 29, 2007.

The defense lawyer in an attempted murder case in Farmville, VA, returned to the courtroom after a recess and said that he couldn't continue his closing argument because he had lost his train of thought. The defendant offered to finish the argument himself. The presiding judge declared a mistrial and recommended that the lawyer, a 74-year-old former judge, seek medical treatment.

Wednesday, February 14, 2007

Milberg Weiss Plaintiff Took Kickbacks

A former ophthalmologist has admitted to taking payments for serving as lead plaintiff in class actions filed by plaintiffs' firm Milberg Weiss. Former Lead Plaintiff's Guilty Plea May Spell Trouble for Lawyer Lerach, The Recorder (, Feb. 1, 2007. See Wikipedia for a summary of the firm's troubles.

How to Deal With the Many Types of Anti-Corporate Jurors

Two litigation consultants (Ken Broda-Bahm and Kevin Boully) offer advice on How to Deal With the Many Types of Anti-Corporate Jurors, Nat'l L.J., Feb. 2, 2007.

People who dislike or distrust corporations fall into different categories:

Anti-corporate individualists, who distrust a corporation's level of power and control, will not share the same views as anti-corporate environmentalists, who disparage the side effects of some forms of corporate behavior. Anti-corporate moralists, who focus on corporate dishonesty above all, will not always agree with anti-corporate populists, who value the common person and draw sharp distinctions between themselves and elite executives. Anti-corporate egalitarians, who inherently mistrust profit itself and resulting concentrations of wealth, differ from anti-corporate nationalists, who fear the transnational influence of corporations on so many facets of life.

There even exist anti-corporate capitalists, who are critical of modern corporations precisely because of the high standards they impose for the responsibility of corporations in a self-policing economic system. Bearing in mind these distinctions and many others, it pays to know why a potential juror may dislike a big company, in order to know whether that juror should serve and, if the juror serves, how he or she might be persuaded.
(emphasis added) It all makes sense, but who knew?

The authors offer different voir dire and trial strategies to address each type.

Stimson Quits Over Boycott Remarks

Remember Charles "Cully" Stimson, the Defense Department official who suggested that corporate clients should take their business away from law firms that represent Guantanamo detainees? (See earlier post.) Well, he has resigned. He said the controversy was getting in the way of his effectiveness. Defense Official Quits in Wake of Remarks About Guantanamo Prisoners' Lawyers, (AP), Feb. 5, 2007.

Monday, February 12, 2007

Advice from Abe

In honor of Lincoln's birthday, David Giacalone at Shlep: the Self-Help Law Express has a nice post with Lincoln’s message to lawyers and litigators, Feb. 12, 2007.

First SCOTUS Argument

The Oregonian gives a play-by-play account of a Portland lawyer's rookie appearance before the Supreme Court. Can attorney keep his cool before 'hot bench'?, Oregonian, Feb. 12, 2007.

Thanks: Kim Ositis.

Graphic: mw.

Saturday, February 10, 2007

9th Cir.'s En Banc Cases: "a noteworthy flurry"

The National Law Journal reports 9th Circuit Steps Up En Banc Reviews, Nat'l L.J., Feb. 6, 2007. It has granted 25 requests for the full circuit to rehear cases decided by three-judge panels between between Dec. 21 and Jan. 23. (In that little more than a month there were three federal holidays, and you might think business would slow down.) Professor Arthur D. Hellman (U. Pittsburgh) says "This is a noteworthy flurry of activity."

Commentators in the article suggest that the Ninth Circuit might be trying to clear up conflicts within the circuit before cases can go to the Supreme Court.

Prof. Hellman is not a casual observer of the Ninth Circuit. He is the editor of Restructuring Justice: The Innovations of the Ninth Circuit and the Future of the Federal Courts (KF8700 .R47 1990 at Classified Stacks). He is the author of a casebook on federal courts and a couple of dozen law review articles on related issues. He has also testified about court organization.

  • The View from the Trenches: A Report on the Breakout Sessions at the 2005 National Conference on Appellate Justice, J. App. Prac. & Process 141 (2006).
  • Assessing Judgeship Needs in the Federal Courts of Appeals: Policy Choices and Process Concerns, J. App. Prac. & Process 239 (2003).
  • Statement of
    Arthur D. Hellman
    , House Committee on the Judiciary, Subcommittee on Courts, the Internet, and Intellectual Property, Hearing on H.R. 2723, “The Ninth Circuit Court of Appeals Judgeship and Reorganization Act of 2003”
    October 21, 2003.

Thursday, February 8, 2007

Citing Unpub "Opinions" in 9th Cir.

A colleague asked me what the latest was on citing unpublished opinions, so I looked at the Jan. 2007 version of the Federal Rules of Appellate Procedure with 9th Circuit Local Rules here.

Here's the deal:

  • Nationally, all the federal courts have to allow citation of unpublished "opinions, orders, judgments, or other written dispositions" -- BUT ONLY those issued after Jan. 1, 2007. Fed. R. App. P. 32.1.

  • In the Ninth Circuit, you can cite unpublished dispositions from BEFORE Jan. 1, 2007, when they're relevant under the law of the case, claim preclusion, etc., OR for factual purposes (e.g., to show double jeopardy or the existence of a related case) OR in a request to publish them or a motion for rehearing.

  • The Ninth Circuit says that, even though you can cite them now, unpublished dispositions still "are not precedent, except when relevant under the doctrine of law of the case or rules of claim preclusion or issue preclusion." 9th Cir. R. 36-3(a).

  • When the Ninth Circuit wants a written disposition to be published, it calls it an opinion. There are seven criteria, including that the case establishes, alters, modifies, or clarifies a rule of law, or calls attention to a rule of law which appears to have been generally overlooked. 9th Cir. R. 36-2.

  • A "written, reasoned disposition of a case or a motion which is not intended for publication" is an memorandum. Memoranda are never "published." 9th Cir. R. 36-1.

  • Any other disposition is an order. An order may be published by order of the court. 9th Cir. R. 36-1.

  • Only opinions may indicate the judge who wrote them or be labeled "per curiam."
As a practical matter, many of us will continue to refer to "unpublished opinions" when, under the Ninth Circuit's definitions, they're "memoranda" or "orders." The thing to remember is that you can cite the new ones, but they still have no precedential value.

DSHS Sued by Foster Kids

Three former and current foster children are suing the Department of Social and Health Services, alleging that their former foster father, who abused them, should not have been licensed or retained his license. DSHS hit with foster care claims, Olympian, Feb. 1, 2007. The foster father, Enrique Fabregas, had a criminal record when he became licensed. During the time he had foster children in his home, there were nearly 30 complaints against him. Many were never investigated.

He currently faces criminal charges (rape, possession of child pornography, sexual exploitation of a minor) and is being held in King County Jail in lieu of $1 million bail.

The plaintiffs' lawyer is David P. Moody, who has successfully sued the state in several high-profile (and big-dollar) cases on behalf of institutionalized plaintiffs. Moody has been a Trial Ad instructor.

See also State facing lawsuit in sexual-abuse case, Seattle Times, Feb. 1, 2007; Previous complaints against foster father ignored, Seattle Times, July 26, 2006.

Robin Arnold-Williams, the Secretary of DSHS, says that the state needs unified background-check process (instead of the 14 statutes that currently govern background checks). DSHS chief: Unify background checks, Olympian, Feb. 8, 2007.

Questions About McKay's Dismissal

The Seattle Times reports today that U.S. Attorney John McKay got good review 7 months before ouster (Feb. 8). Not only was a Justice Department review positive, but McKay has also received high praise from Chief Judge Robert Lasnick (W.D. Wash.) and King County Prosecutor Norm Maleng. And "the U.S. Navy last month gave McKay its Distinguished Public Service Award, its highest civilian honor, for creating a computer network that enhances the ability of local, state and federal law enforcement to share information."

Another story: Former U.S. attorney McKay says he was ordered to resign, Seattle Times, Feb. 7, 2007. Thanks: Stephanie Knightlinger. And another: I was fired, says ex-U.S. attorney, News Tribune, Feb. 8, 2007. This one quotes Tom Hillier (Federal Public Defender and Trial Ad instructor): "If this was done for political reasons, it shows a fundamental disrespect for the independence of the U.S. attorneys."

Watada Mistrial

Yesterday the presiding judge declared Lt. Ehren Watada's court-martial a mistrial because of an agreement he signed before the trial. He could be retried. Watada case mistrial declared, Seattle Times, Feb. 8, 2007.

Wednesday, February 7, 2007

Wanna Be a Prosecutor?

Interested in becoming a prosecutor? See Julie Reynolds, How to Become a Prosecutor, Washington Lawyer (DC Bar), Jan. 2007.

Federal Prosecutors Asking for Privilege Waiver

An attorney writes an opinion piece critical of the Department of Justice's position on asking corporate defendants to waive privilege. N. Richard Janis, Taking the Stand: The McNulty Memorandum: Much Ado About Nothing, Washington Lawyer (DC Bar), Feb. 2007.

DOJ operated for several years under the "Principles of Federal Prosecution of Business Organizations" (Jan. 20, 2003), known as the "Thompson memorandum" after its author. Under the policy, federal prosecutors would encourage corporations and individual corporate defendants to waive their attorney-client privilege and work-product protection in order to be seen as cooperating with the investigation. Now there's a new memorandum in place, the McNulty Memorandum. Mr. Janis, who serves on the ABA's Presidential Task Force on the Attorney Client Privilege, thinks the new memorandum is about as bad as the last. (The views expressed are his and not the Task Force's.)

Alternatives to Detention

Studies show that juvenile detention often does more harm than good -- especially during the period between when being cited and appearing before a judge. The California Bar Journal has an article describing a program in Santa Cruz that has the teens in supervised evening activities plus a weekend day of community service instead of locking them up. It seems to work for the kids -- AND it save the state a lot of money too. An Alternative to Juvenile Detention, Cal. B.J., Feb. 2007.

The program in Santa Cruz is supported by the Annie E. Casey Foundation, whose Juvenile Detention Alternatives Initiative is working on similar programs around the country. At at the JDAI website, you can find studies showing the results of test programs. There are now about 75 sites in 19 states and DC. Looking at a recent newsletter (Casey Connects, winter 2006), I happened to see that a program in Tacoma (Pierce County) has enabled the county to close a 50-unit wing of the detention center; the county reallocated $800,000 per year to detention alternative programs. Pierce County's diversion program is described here.

Quality of Life at Big Firms - for Women and Men

The cover story in this month's California Lawyer is Malaika Costello-Dougherty, We're Outta Here: Why Women Are Leaving Big Firms, Feb. 2007.

Robert Ambrogi picked up an interesting fact:

Women are leaving large law firms faster than men. But men, it would appear, are jumping ship in greater numbers than ever before. That suggests that Howell's statement about the need for radical change at large firms applies across the board. Men, too, are choosing balance over billables.
Women Lawyers See Generation Gap, Legal Blog Watch, Feb. 6, 2007.

Thanks: Andy Benjamin.

More on the US Attorney Shake-up

The Washington Post has more on "the growing political storm over the recent U.S. attorney firings." Yesterday Deputy AG Paul J. McNulty acknowledged that a U.S. attorney in Arkansas was asked to resign so that the administration could appoint a former aide to Karl Rove, but said that the administration asked six other U.S. attorneys to step down because of "performance-related" issues. Deputy Attorney General Defends Prosecutor Firings, Wash. Post, Feb. 7, 2007.

This is the first article about the flap that names our local U.S. attorney, John McKay, as one of the ones who was asked to resign. Until now, I'd been agnostic, thinking it was possible he did indeed decide that it was time to leave government service to return to practice or teaching. (When he announced his resignation, he said private practice; later he said he'd teach at Seattle U.) People do decide to leave jobs -- and I imagine the U.S. attorney job is pretty demanding and could leave one craving a break after five years.

Earlier posts: Jan. 28, Jan. 27 , Dec. 15.

For what it's worth, Mr. McKay was one of my favorite law school commencement speakers here. I was sorry to miss his talk at the law school last October.

Thanks: Stephanie Knightlinger.

UW Law Alumnae; Therapeutic Jurisprudence

Last night I went to the UW Law Women's Caucus Second-Annual Alumnae Recognition Reception. Professor Emerita Marjorie Dick Rombauer ('60), an expert in commercial law and legal writing and research, was given the Distinguished Alumna Award. And Justice Bobbe Bridge ('76) received the Outstanding Contribution to Women in the Law Award and delivered the keynote address.

Both Professor Rombauer and Justice Bridge talked about the dramatic difference in the makeup of the law school since they were students. When Prof. Rombauer was a 1L, there were only three upperclass women: one 3L and two 2Ls. When Justice Bridge was a student, there were more women, but still a small minority. Both honorees were firsts: Prof. Rombauer was the first female tenured faculty member other than the librarian, Marian Gould Gallagher, and the first female dean (she was acting dean for a year). Justice Bridge was the first female partner at her law firm (Garvey Schubert Barer). Now (and for the last several years) women are a majority of the entering class.

In her remarks, Justice Bridge related that some people see "the feminization of the legal profession" as a harm, but she spoke of the great benefits. While there will always be a role for adversarial lawyering, she applauded the move toward collaborative lawyering. She talked about the rise of "therapeutic jurisprudence" -- courts that try to solve problems instead of just meting out punishment or addressing one incident only to leave the fertile ground for the next and the next. These include community courts, drug courts, mental health courts, and (although she didn't mention them) youth courts.

For an introduction to therapeutic jurisprudence, see these materials from tne National Center for State Courts:

For more, see NCSC's Problem-Solving Courts Resource Center, which has information about specific types of these courts, help for courts, best practices checklists, and so on. The Problem-Solving Reporter is a newsletter with short pieces about developments around the country.

Problem solving courts (programs using therapeutic justice) in Washington:
(This isn't an exhaustive list -- it's just to give you a sense of the range of projects that are going on.)

Tuesday, February 6, 2007

9th Cir. OKs Wal-Mart Class Action

Today the Ninth Circuit upheld the district court's certification of a class action in a sex discrimination case against Wal-Mart. Dukes v. Wal-Mart, Inc., No. 04-16688 (9th Cir. Feb. 6, 2007), court website.

The class is estimated to include more than 1.5 million women -- any woman who has worked for any Wal-Mart store in the United States in a range of positions ("from part-time, entry-level, hourly employees to salaried managers") from Dec. 26, 1998, to present. Plaintiffs seek class-wide injunctive and declaratory relief, as well as lost pay and punitive damages.

Judge Pregerson wrote the majority opinion; Judge Kleinfeld dissented.

The plaintiffs' website for the class is here. The homepage suggests that readers might be interested in a similar case against Costco, which has its own website. The litigation teams are very similar for the two cases (there are 7 firms working on the Wal-Mart case and 5 for the Costco case).

Sunday, February 4, 2007

How Washington Picks Judges

From the Seattle Times editorial page editor, an overview of the issues around judicial campaigning: James Vesely, Handpick your judge, or get one picked for you, Seattle Times, Feb. 4, 2007.

Jurisdiction Under Class Action Law

The Class Action Fairness Act allows defendants to remove class actions to federal court under certain circumstances. See Third Circuit Weighs In On Burden Of Proof Under CAFA, Consumer Law & Policy Blog, Dec. 18, 2006, for a discussion of a case holding that the defendant has the burden of proof to show that the jurisdictional requirements are met.

Speaking of CAFA, the Loyola of Los Angeles Law Review has a symposium on it. For link and list of articles, see Just What You're Hankerin' For: A Bevy of Articles About CAFA, Consumer Law & Policy Blog, Dec. 14, 2006.

Saturday, February 3, 2007

When Will Schierman's Trial Begin?

The prosecution is seeking a delay of 5 months in Conner Schierman's trial, which is now scheduled to begin March 26. Senior Deputy Prosecutor Scott O'Toole is requesting the delay so forensic experts can have more time to analyze evidence from the crime scene. James Conroy, Schierman's attorney, opposes the delay. Judge Greg Canova ordered the prosecution to return in two weeks with declarations showing the reason for the delay. Prosecutor in murder trial seeks delay of 5 months, Seattle Times, Feb. 2, 2007.

Courts' Use of Wikipedia

The New York Times had an article this week about courts citing Wikipedia -- which they've done over a hundred times since 2004. Courts Turn to Wikipedia, but Selectively, New York Times, Jan. 29, 2007.

Meanwhile, the Washington Supreme Court cited Wikipedia last week. State v. O'Neal, 2007 Wash. LEXIS 60, (Jan. 25, 2007), Washington courts link, involved the issue whether defendants were "armed" for the purpose of a firearms enhancement for a drug offense when they had guns in their home but were not in holding them at the time of their arrest. When Justice Chambers was relating the facts, he stated that a "loaded AR-15 (a civilian version of the military M16) was found in one bedroom" -- and supported the parenthetical with a footnote citing Wikipedia. This seems typical of the sort of uses mentioned by the New York Times: a side point that might add interest or context to the opinion but is not at all central to the resolution of the case. (Justice Sanders, in dissent, did not cite Wikipedia.)

Justice Chambers cited Wikipedia again on Thursday, this time to support a literary allusion: "As Sherlock Holmes might have said to Dr. Watson, 'It is elementary, my dear fellow,' . . ." PUD No. 2 v. North American Foreign Trade Zone Industries, LLC, 2007 Wash. LEXIS 125 (Feb. 1, 2007)(Chambers, J., dissenting), Wash. courts link.

Thanks: Kris Henderson

Updates -- See also:

Burning Calories or Burning Consumers?

The Center for Science in the Public Interest is suing Coca-Cola and Nestle, alleging that their claims that their green-tea drink, Enviga, burns calories and helps weight loss are fraudulent. CSPI Sues Coke and Nestle Over Claims That Their Diet Soda Helps Achieve Weight Loss, Consumer Law & Policy Blog, Feb. 1, 2007.

Friday, February 2, 2007

PILA Auction - Wow!

I was just at the 12th Annual PILA auction. It was impressive, as always. Dedicated students pull off this complex and classy event, requiring countless hours of planning, organization, and detail work -- all while they are also carrying full courseloads (OK, so their schoolwork might suffer just a little in the weeks before the auction) and, variously, working part-time, serving on journals, or raising kids.

And then the event is great. It's the biggest event in the law school year that brings together people from many segments -- students, faculty, staff, alumni, community supporters. I enjoyed catching up with some alumni -- some now working in trial jobs they'd hoped for back when they were taking Trial Ad. Community supporters in attendance included William H. Gates Sr., Attorney General Rob McKenna (who spoke), Justice Bobbe Bridge, and Senator Ken Jacobsen. The law firm of Buck & Gordon stood out for its generosity.

The PILA auction is a happy event. People are in a good mood, visiting, shopping at the silent auction, eating, cheering each other on during the live auction -- all for the good cause of raising money to support students in summer jobs with public interest groups. That's good for the students, good for the groups, and good for the clients served!

For the last couple of years, PILA has been raising money for an endowment to start a Loan Repayment Assistance Program (LRAP). This is becoming more and more important as the cost of legal education rises -- and public interest and government salaries don't.

Equal Justice Works recently released Financing the Future: Responses to the Rising Debt of Law Students (2d ed. 2006) finding that law school debt

is harming the legal profession and our justice system. Public service is a calling for many law school graduates, but research on employment trends finds an alarming shortage of public sector and social justice jobs that provide a reasonable standard of living for those with educational debt, which now stands between many law school graduates and their desire to pursue public service careers.
Press release, Dec. 18, 2006. Here are some stark numbers from the report (page iv):
Debt Burden
  • More than 80% of law students borrow to pay for their law degree.
  • The average amount borrowed in law school by the class of 2005 was $78,763 at a private school and $51,056 at a public school.
Public Interest Salaries
  • The median entry-level salary for an attorney from the class of 2005 at a civil legal services
    organization was $36,000.
  • The median entry-level salary for public defenders was about $43,000.
  • State and local prosecuting attorneys started around $44,000.
  • The median entry-level salary was $40,000 for attorneys in public interest organizations, such as those dealing with immigrant or civil rights issues.
As I recall, when I graduated from a private law school in 1982, I had about $13,000 in debt, and my first three jobs paid $24,000 (clerkship), $24,000 (government), and $18,500 (fellowship). I was not rolling in money, and my monthly loan payments definitely affected me -- but my total debt burden was just over half my annual salary, as opposed to today's grads whose debt is often TWICE their annual salary. The problem isn't just about grads who can't afford to work in their chosen fields. It's also about all the people who need the legal services that these grads could provide.

The good news in the report is that more LRAP programs are becoming available. About 100 law schools have them now. But this is just a start. PILA is doing its part to get an LRAP program here.

In the meantime, the Washington State Bar Association has an LRAP program, helping about five lawyers a year. And efforts are underway to get state legislation for a state-supported program.

Hats off to PILA -- keep up the good work!

Thursday, February 1, 2007

National Moot Court Champs

Congratulations to Dustin Buehler, Aaron Thomson, and Candice Tewel, our UW team, who won The Association of the Bar of the City of New York - National Moot Court Competition in New York tonight!

Photos: Top, Thomson, Tewel, and Buehler holding their trophy (photo by Andrew Rafkind). Below, from the Moot Court Honor Board website, showing the Buehler, Thomson, and Tewel when they won the regional competition in Boise in November. Both photos used with permission.

Appellate Attorney Sanctioned for Dissing Court

The Utah Supreme Court has declined review of a case and ordered the unsuccessful appellant's attorney to pay attorney fees because the briefs had "a substantial amount of materail that is offensive, inappropriate and disrespectful" of the Court of Appeals. Among other things, the lawyer had said that the Court of Appeals fabricated evidence and was destroying "the moral premise of the legal system." Sanctioned for 'Disrespect', ABA Journal eReport, Jan. 26, 2007.

The sanctioned attorney is Boyd Kimball Dyer, who admitted, "I was wrong, and I deserve the sanctions." In his day job, Dyer is a law professor at the University of Utah.

The case is Peters v. Pine Meadow Ranch Home Ass'n, 2007 UT 2 (Jan. 12, 2007). The court offers a lesson in civility:

¶21 There is a misconception among some lawyers and clients that advocacy can be enhanced by personal attacks, overly aggressive conduct, or confrontational tactics. Although it is true that this type of advocacy may occasionally lead to some short-term tactical advantages, our collective experience as a court at various levels of the judicial process has convinced us that it is usually highly counterproductive. It distracts the decision-maker from the merits of the case and erodes the credibility of the advocate. Credibility is often directly tied to civility and professionalism. Judges, jurors, and other lawyers are more likely to believe a lawyer who is courteous and treats others with dignity and respect. Counsel in the case at bar would have been far more effective had he focused exclusively on the facts and the law without making his additional commentary disparaging and insulting the judiciary.

¶22 We have sought to encourage the bar to aspire to professionalism and civility in the practice of law through our adoption of the Standards of Professionalism and Civility. While these standards are not binding, we encourage members of the bar to study and follow them. Had counsel in the cases at bar observed these standards, he and his clients would not have incurred the severe sanctions we impose today.

Scrappy Trial Lawyers

The ABA Journal has a long article discussing the American Association for Justice (until July, it was ATLA, the Association of Trial Lawyers of America) and its efforts to promote the image of trial lawyers and combat the attacks of the U.S. Chamber of Commerce and others. Terry Carter, New Name, New Strategies: ATLA changes its moniker and hones its tactics to battle tort reformers, ABA J., Feb. 2007.

(A little rhetorical bit I've always wondered about: why is it that when politicians talk about "trial lawyers," they mean only lawyers who represent plaintiffs in tort cases? Don't the lawyers representing the defendants also go to trial? What about prosecutors and criminal defense attornesy? What about commercial lawyers who litigate contract disputes?)

Libby Jurors Question Witnesses

How often does a juror hearing testimony wonder about something that's never cleared up? Well, in the Scooter Libby trial, they don't have to keep wondering: they can write a question and send it to the judge (U.S. District Judge Reggie B. Walton), who will discuss with the attorneys for both sides whether to ask it and then, often, ask it of the witness. Jurors' Queries Yield Insights -- And Laughs, Washington Post, Feb. 1, 2007.

Some of the questions have been dead on, showing that the highly educated jurors -- who include an art curator, a retired math teacher and an international health policy adviser -- seem to home in on key evidence or testimony. Other questions have elicited new insights into witnesses' thinking, and still others have evoked a few laughs.

The whole practice has been controversial among attorneys on both sides -- worried about losing control of the points they hope to score with each witness's testimony -- who argue quietly with Walton at the bench over what can be asked.
According to the Post, "About 15 percent of state courts and 8 percent of federal courts permit jury questions." Arizona, Colorado, and Indiana require that jurors be allowed to ask questions.

The ABA recommends juror questions (at least in civil trials) in its Principles for Juries and Jury Trials (2005):
C. In civil cases, jurors should, ordinarily, be permitted to submit written questions for witnesses. In deciding whether to permit jurors to submit written questions in criminal cases, the court should take into consideration the historic reasons why courts in a number of jurisdictions have discouraged juror questions and the experience in those jurisdictions that have allowed it.
  1. Jurors should be instructed at the beginning of the trial concerning their ability to submit written questions for witnesses.
  2. Upon receipt of a written question, the court should make it part of the court record and disclose it to the parties outside the hearing of the jury. The parties should be given the opportunity, outside the hearing of the jury, to interpose objections and suggest modifications to the question.
  3. After ruling that a question is appropriate, the court may pose the question to the witness, or permit a party to do so, at that time or later; in so deciding, the court should consider whether the parties prefer to ask, or to have the court ask, the question. The court should modify the question to eliminate any objectionable material.
  4. After the question is answered, the parties should be given an opportunity to ask follow-up questions.
pp. 18-19 (Principle 13).

So questions might be a good idea ... but then how should a judge handle them? Leland Anderson, a trial judge from Colorado, offered "Practice Tips for Handling Juror Questions" at the 2006 National Symposium on the American Jury System. (You have to go to the list of program materials and then select his to download it in Word.)

The National Center for State Courts has a bibliography of articles about juror questions here.

Thanks: Stephanie Knightlinger.