Friday, December 26, 2008

Washington prison doctor quits over death penalty

Washington prison doctor quits over death penalty, Seattle P-I, Dec. 24, 2008:

The top doctor in the Washington Department of Corrections has resigned, saying the use of medical staff to prepare for an execution is unethical.
The Department of Corrections says that no employee is required to take part in an execution.

Thanks: Roxanne Eberle.

Wednesday, December 24, 2008

Possible Private Court Hearings in R.I. Raise ACLU’s Hackles

Possible Private Court Hearings in R.I. Raise ACLU’s Hackles, ABA J. online, Dec. 24, 2008.

An almost 25-year-old law in Rhode Island is suddenly controversial, as it looks like it might be implemented for the first time.

The so-called hire-a-judge law enacted by the state in 1984 is the basis of an apparent plan by the Rhode Island Supreme Court to allow litigants in civil cases to retain retired judges to hold private hearings, reports the Providence Journal.

Under Rhode Island’s Retired Justice Trial Act, litigants decide where the case would be heard and pay all costs—including the fee for the retired judge whose decisions, the law states, would “have the same force and effect as if it had been entered or made by an active judge of the court.”
For more, see Hire-a-judge law may come to life, Providence J., Dec. 24, 2008.

Weighing Guilt When the Man on Trial Did No Killing

Kareen Fahim, Weighing Guilt When the Man on Trial Did No Killing, N.Y. Times, Dec. 24, 2008.

In the glare of public scrutiny, juries in Brooklyn and the Bronx started deliberations on separate cases last week, considering the same shocking charge — the murder of a police officer.

That was not all they had to contend with: Prosecutors in both cases were asking for murder convictions for the defendants who, the authorities acknowledged, were not the men who fired the fatal shots.

In deciding whether to convict, the jurors in Brooklyn repeatedly asked for readings of the law, and explanations, in plain English, for what it meant to be an accessory to murder. In the Bronx, jurors sifted through all of the evidence over and over, to try and divine whether the defendant in their case knew that an acquaintance of his — the man who killed the officer — was carrying a gun.
One defendant was acquitted of felony murder but convicted of attempted burglary. A mistrial was declared in the other defendant's case.

The newspaper story quotes the comments of several jurors, explaining the questions they had during deliberations.

Jury Issues First Death Sentence in New Hampshire Since the 1950s

Jury Issues First Death Sentence in New Hampshire Since the 1950s, N.Y. Times, Dec. 18, 2008. The defendant was convicted of killing a police officer.

Another man was convicted of capital murder in October, but his jury rejected the death penalty. That defendant was white; the one sentenced to death is black and the officer he killed was white.

UW law student finds evidence that frees man convicted of Tacoma robbery

UW law student finds evidence that frees man convicted of Tacoma robbery, News Tribune (Tacoma), Dec. 23, 2008. Accused of robbing a Safeway in Tacoma, the defendant said he was in L.A. at the time and in fact had met with his probation officer. Nobody came up with the records to show it, and he was convicted. Boris Reznikov, then a student in the Innocence Project Northwest clinic, got the records and the man was exonerated. Severe weather has delayed the processing of the paperwork, but he will be released soon. Clinic director Jacqueline McMurtrie and volunteer attorney Christopher R. Carney also worked on the case.

Thanks: Lisa Kremer.

Update (Dec. 28): Jackie McMurtrie reports that they were able to get Mr. Anderson, the wrongly convicted man, to L.A. on Christmas so he could be with his extended family.

Sunday, December 21, 2008

Service by Facebook

In Seeming First, Aussie Court Says Default Judgment Can Be Served on Facebook, ABA Journal online, Dec. 15, 2008.

Later, the ABA Journal asked readers to send in their oddest stories of process service. One of my favorites involved putting the papers under the paws of a Saint Bernard in the front yard.

Photo is of Orville Wright's dog, Scipio, from (I know, the connection to process service is tenuous, but I like a nice dog picture. And Scipio looks like he would have let a law student intern leave papers under his paws, doesn't he?)

Thanks: Maureen Howard.

Monday, December 15, 2008

Whole Foods Sues FTC

In Once-Every-Fifty-Years Case, Whole Foods Sues FTC, Am. Lawyer, Dec. 10, 2008 (

The FTC opposed the merger of Whole Foods Market and Wild Oats Marketplace in the summer of 2007, so it sought a preliminary injunction. The district court denied the motion. The FTC went to the D.C. Circuit to get an injunction pending appeal. Denied. So the deal went ahead. The FTC still appealed the district court's denial of an injunction, and in July the D.C. Circuit reversed and remanded. Federal Trade Comm'n v. Whole Food Market, Inc., No. 07-5276 (D.C. Cir. July 29, 2009, amended and reissued Nov. 21, 2008).

Now, American Lawyer reports:

Now, the Whole Foods legal team from Orrick, Herrington & Sutcliffe, Dechert and new addition Constantine Cannon is trying something it says hasn't been attempted in half a century -- suing the FTC.

The Whole Foods team, which says the company has already spent $16.5 million on legal fees and other costs related to winning approval of the deal, says the FTC is so biased against the merger that it should be prohibited from reviewing it.

Additionally, the grocer's lawyers say, new FTC rules that call for an expedited discovery process put Whole Foods at an unfair disadvantage by giving the company just five months to prepare its case (Whole Foods wants an additional ten months).
A press release from Whole Foods (Dec. 8) is here. The FTC has lots of documents related to its investigation and the litigation here.

See also Whole Foods Returns FTC's Fire: Grocer Files Rare Suit Against U.S. Agency in Fight Over Wild Oats Merger, Wall St. J., Dec. 9, 2008.

Tuesday, December 9, 2008

Justice to go mobile in Karnataka-India-The Times of India

Justice to go mobile in Karnataka-India-The Times of India, Nov. 20, 2008:

BANGALORE: Karnataka is all set to take justice and legal literacy to the doorsteps of its people across the state, particularly to the poor as they cannot pay for the expensive and time-consuming court battles.

A specially designed bus will serve as a court room to conduct the lok adalat (people's court).

Lok adalat is a mechanism for speedy settlement of disputes through conciliation, compromise or arbitration. It is not a substitute to the courts but supplements their function. For the financially weak, it is a relief as they need not pay any court or lawyer's fees for the lok adalats to take up their case.
Thanks: Michele Storms.

Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies - Panel Upholds $17M Attorney Fee Award, Cites Bad-Faith Patent Litigation by Drug Companies, Dec. 9, 2008.

The generic drug companies had sought approval to produce generic versions of an anti-diabetic drug for which Takeda held the patent. The two companies made certifications that the Takeda patent was invalid for obviousness.

But at trial, both companies changed the focus of their invalidity arguments from what they had filed in their certifications. After an extensive bench trial, the court held that the patent was nonobvious and enforceable.

Takeda moved for an award of attorney fees under a section of the law that permits that award to prevailing parties in "exceptional cases." The district court agreed with Takeda that both companies lacked a good faith basis for their certification filings and had engaged in litigation misconduct.

Sunday, December 7, 2008

Civil-rights trial will pit deputy against deputy

Local News | Civil-rights trial will pit deputy against deputy | Seattle Times Newspaper:

A flier calling for King County sheriff's deputies to rally around "our brother, Brian Bonnar," who is accused of beating a handcuffed suspect, has federal prosecutors and sheriff's officials concerned that its intent is to intimidate officers prepared to testify against him.
This is "the first time a law-enforcement officer in Western Washington has been charged under the criminal civil-rights statute."

One of the prosecutors on the case is Assistant U.S. Attorney Kelly Harris, who is also a UW Trial Ad instructor.

Friday, December 5, 2008

Community Supervision of Dangerous Mentally Ill Offenders

A task force convened by the King County Prosecuting Attorney and the Department of Corrections Secretary released a 160 page report on the mental health and criminal justice systems: Examining the Tools in the Toolbox A Review of Community Supervision of Dangerous Mentally Ill Offenders. A news story on the task force report and investigation, and the tragic circumstances that led to its formation, is in today's Seattle Post-Intelligencer. It reports that today "King County Prosecutor Dan Satterberg will present 64 wide-ranging 'concepts for reform' to the Senate Human Services and Corrections Committee."

Thanks: Peggy Jarrett.

Peggy posted this on Gallagher Blogs (our law library blog), and suggested that I tell readers of Trial Ad about it too. Good idea, and done.

If you haven't already, you might want to visit Gallagher Blogs directly -- we post an interesting variety of tips, news, and resources related to law and legal research, and you could find it another good blog to follow.

Ressam sentence reinstated

Ressam sentence reinstated, Seattle P-I, Dec. 4, 2008. Federal prosecutors asked Judge John Coughenour (W.D. Wash.) to increase convicted terrorist Ahmed Ressam's sentence from 22 years to life. His sentence had reflected his early cooperation with investigators but he has stopped cooperating. Judge Coughenour stuck with the original sentence, but U.S. Attorney Jeff Sullivan hopes to appeal that decision.

Thursday, December 4, 2008

Former Entellium CEO, finance chief may be near plea deal

Former Entellium CEO, finance chief may be near plea deal | Seattle Times Newspaper, Dec. 2, 2008:

Former Entellium executives Paul Johnston and Parrish Jones may be close to reaching a plea agreement with federal prosecutors on charges of falsely inflating company revenue to lure millions of dollars from investors.

The deal would allow the defendants to avoid trial and possibly obtain a shorter sentence in exchange for pleading guilty to one count of wire fraud, which is punishable by up to 20 years in prison and a $250,000 fine.
One of the defendants is represented by Jeffery Robinson, who is also a Trial Ad instructor.

Tuesday, December 2, 2008

Mother Goes Undercover to Gather Evidence

Vanity Fair gives an inside look at a very unusual post-trial investigation. Christopher Ketcham on Doreen Giuliano's Quest for Justice: About Us:, Jan. 2009 (posted Nov. 28, 2008).

After her son, John Giuca, was convicted in a high-profile murder case, Doreen Giuliano wondered what she could do besides sending snacks to him in prison. Eventually the Brooklyn woman determined that she would gather information about jurors, hoping to find something that would get her son a new trial.

She followed her prime target for months, and then ramped up her efforts. She changed her appearance (losing weight, going to a tanning salon, dying her hair) and rented an apartment near him. She made a point to show up on his street and, with some strategic flirting, managed to strike up a friendship with him. After months of shared meals, wine, and marijuana, she finally got the former juror to say that he had lied during voir dire, revealing the fact that he had known some of the witnesses. Ketcham writes:

The law is clear: John Giuca, based on the evidence secretly gathered by his mother—along with other discrepancies in witness testimony—may very well be entitled to a new trial. Even if Allo didn’t understand the questions during voir dire of a connection to Giuca, under his oath as a juror he was obliged, once their intersecting circles became apparent, to inform the court of this conflict.

In addition, according to Doreen’s affidavit, which attorney Epstein has prepared to file in court, Allo also admitted on tape that he used to hang with members of the Ghetto Mafia (the gang prosecutors contend Giuca belonged to), that Allo’s cousin had dated a woman whose family’s house was used for Ghetto Mafia meetings, and that during the trial this cousin and Allo discussed events related to the case, referring to Giuca as a gang big shot named Slim. “It virtually demands a reversal of the conviction,” says Ezra B. Glaser, a legal adviser to Doreen. “There are New York State and U.S. Supreme Court precedents. He [Allo] knew what he did was improper.”

One thing I wonder: why did Ms. Giuliano, her attorney, and her son's attorney decide to give details to and pose for pictures for the Vanity Fair reporter before filing anything in court? The article was posted on VF's website on Friday; papers were filed on Monday.

Other coverage:

Friday, November 28, 2008

Emotions and Culpability

In Emotions and Culpability: How the Law is at Odds With Psychology, Jurors, and Itself Norman J. Finkel and W. Gerrod Parrott investigate

why, when, and how ordinary human beings hold some individuals guilty of crimes, but others less so or not at all. Why, for example, do the emotions of the accused sometimes aggravate a murder, making it a heinous crime, whereas other emotions might mitigate that murder to manslaughter, excuse a killing (“by reason of insanity”), or even justify it (“by reason of self-defense”)? And what emotions on the part of jurors come into play as they arrive at their decisions?

The authors argue persuasively that U.S. law is out of touch with the way that jurors’ “commonsense justice” works and the way they judge culpability. This disconnect has resulted in some inconsistent verdicts across different types of cases and thus has serious implications for whether the law will be respected and obeyed.

Problems arise because criminal law has no unified theory of emotion and culpability, and legal scholars often seem to misunderstand or ignore what psychologists know about emotion. The authors skillfully show that the law’s culpability theories are (and must be) psychological at heart, and they propose ways in which psychology can help inform and support the law.
Publisher's description. This book, from the American Psychological Association, is available in the Law Library: K5065 .F56 2006 at Classified Stacks.

Thursday, November 27, 2008

What Happens When Wrongfully Convicted Are Released?

The Wisconsin Law Journal profiled several people who were exonerated -- "After the Door Opens":

A Thanksgiving thought: be thankful that you haven't endured the nightmares these people have, and be thankful that you can work to improve the system. If wrongful convictions are your issue, check out the Innocence Project Northwest or the national Innocence Project. And if your passion is free speech or civil rights or environmental justice or anything else, there are places for you to make a difference, too.

Thanks: WisBlawg.

Wednesday, November 26, 2008

History of Adversary Trial

Do you like to read history? See Fighting For Justice: The History and Origins of Adversary Trial, by John Hostettler. The publisher's description is here. And the book is available in the Law Library: KD8364 .H67 2006 at Classified Stacks.

Tuesday, November 25, 2008

When Juries Acquit But the Judges Would Have Convicted

Daniel Givelber & Amy Farrell used data about noncapital felony trials from the National Center for State Courts -- including questionnaires filled out by judge, jurors, prosecutor, and defense attorney -- to explore the differences between jurors' and judges' assessments of guilt. Judges and Juries: The Defense Case and Differences in Acquittal Rates, 33 Law & Soc. Inquiry 31-52 (2008)

Kalven and Zeisel’s (1966) classic study,
The American Jury, concluded that juries were “in revolt” from the law when they acquitted when judges would have convicted. Using data collected by the National Center for State Courts to examine jury decision making in four different communities, this article reexamines the question of the judge and jury’s respective fidelity to the law and evidence by examining the influence on judge and jury of the defendant’s evidence, his criminal record, and his reason for refusing to plead. No data can tell us definitively whether the judge is correct and the jury in error when they disagree, but the data analyzed in the present study can tell us whether the factors that move the jury and fail to move the judge are or are not consistent with the innocence of the accused.

Monday, November 24, 2008

The Trials of Darryl Hunt

The Trials of Darryl Hunt is the story of a murder, its investigation, the wrongful conviction of an innocent man, and -- after many years -- his eventual exoneration. You can see a trailer on the film's website. And you can check out the DVD from the law library and watch the whole thing: KF9756 .T75 2007 at Classified Stacks

Friday, November 21, 2008

Is Pro Bono Good?

Last month, Chief Judge Dennis G. Jacobs (2d Cir.) questioned whether much "public interest" is in the public interest, criticizing suits against the government (whose elected officials should have a better claim to representing the public interest than unelected lawyers) and impact litigation. Pro Bono for Fun and Profit, Oct. 6, 2008 (speech at Rochester Federalist Society).

My point, in a nutshell, is that much of what we call legal work for the public interest is essentially selfserving: Lawyers use public interest litigation to promote their own agendas, social and political--and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting--to confer glamor on their work, and to give solace to overworked law associates. And it has been reported that some firms in New York City pay money to public-interest groups for the opportunity of litigating the cases that public-interest groups conceive on behalf of the clients they recruit.

There are citizens in every profession, craft and walk of life who are active in promoting their own political views and agendas. When they do this, it is understood that they are advancing their own views and interests. But when lawyers do it, through litigation, it is said to be work for the public interest. . . . Well, sometimes yes, and sometimes no. When we do work of this kind, a lot of people would see it as doing well while doing bono. Prosperous law firms that prevail in pro bono litigation do not hesitate to put in for legal fees where the law allows, and happily collect compensation--often from the taxpayers--for work they have touted as their service to the public. And even if the firms donate all or part to charity, the charities are usually groups that have as their charitable object the promotion of litigation rather than (say) medical research or hurricane relief.
See NY Judge's Remarks Cause Stir Over Goal of Pro Bono Work, N.Y.L.J., Oct. 31, 2008.

Judge Boyce F. Martin (6th Cir.) replies: It's All for the Clients, Nat'l L.J., Nov. 24, 2008
ecause Jacobs' critique flows from the premise that clients merely fulfill a "technical requirement," it is understandable that he fails to consider the value that victims of discriminatory government policies and actions place in having someone speak up for the injustice they face. His indictment of public interest lawyers' motives simply overlooks the struggles of the workers, prisoners, parents and children whose struggles inform the work of public interest lawyers.

The 2d U.S. Circuit Court of Appeals must be a far different place from the 6th Circuit, because I cannot recognize among the cases before us the lawyers that Jacobs accuses of abdicating their responsibilities to clients to advance their own social agendas. Indeed, I am immensely grateful for the efforts of lawyers who represent very real clients in a variety of difficult cases — including in the broader "impact" litigation that Jacobs decries. In my view, the value of such representation cannot be overstated when litigation of an individual's claim exposes systemic violations of the law. Regardless of the legal issue, the presence of experienced and qualified counsel lends stability and order to the proceedings before us.

Thursday, November 20, 2008

Federal Evidence

I got an email announcement from the folks at the site. It seems to have a lot of good, free content (as well as an option for subscribing to a pricey newsletter). Here's the announcement (edited lightly):

The site provides a forum for evidence issues, offering many complimentary evidence features and tools for visitors. Some of the features include:The new attorney-client privilege rule, FRE 502, which was recently signed into law, has been a recent topic on the Federal Evidence Blog here and here.

We have learned that law professors are using the Federal Evidence Blog to discuss and share recent topical cases and issues with their law students. Other blog sites are adding the Federal Evidence Blog to their list of other sites. If you or others are also interested in contributing evidence articles, details are available here.

The separate Federal Evidence Review is a monthly electronic legal journal that highlights recent federal evidence cases and developments for subscribers. Special recurring features include: Lead Story, Practice Tip, Supreme Court Watch, Circuit Splits, Developing Circuit Consensus, Open Issue Pending, Open Issues Resolved, Proposed Amendments to the FRE, and more. An index highlights the range of topics covered. Subscription information is available here.

Lawyers Will Be Lawyers, Dumping More on Juries Than They Can Process -

Lawyers Will Be Lawyers, Dumping More on Juries Than They Can Process -, Nov. 6, 2008.

When the high-profile prosecution of a Texas charity accused of helping Palestinian terrorists collapsed in a chaotic mistrial here a year ago, there were lots of theories about what went wrong, from government overreaching to a new political climate to a rogue juror.

But there was another problem, according to lawyers who followed the trial: Some jurors were bored and bewildered. They were buried under 197 counts and an avalanche of evidence, including hundreds of documents and dozens of wiretap tapes.
The article discusses the temptation lawyers have to put in every darn bit of evidence they've dug up -- and the resultant boredom and confusion juries experience. In white-collar cases, there's often simply too much accounting and paper to hold jurors' attention.
Jury consultant Robert Hirschhorn offers this trifecta: "A, you have to make it interesting. B, you have to use simple words. C, you need to come up with analogies or examples."
Thanks: Alysha Yagoda.

Wednesday, November 19, 2008

Justice Stevens Shows No Signs of Leaving Supreme Court

People like to speculate about what justices a new President would appoint. But the President only gets to appoint when there's a vacancy. Justice Stevens, at 88 the oldest justice, is going strong, and no other justice is talking retirement either. Justice Stevens Shows No Signs of Leaving Supreme Court -, Nov. 18, 2008.

Tuesday, November 18, 2008

Prosecution of Low-End Drug Offenses

Culture Clash: City and County Prosecutors Clash over Drug Prosecutions, The Stranger (Seattle), Nov. 11, 2008:

Seattle City Attorney Tom Carr is taking a different approach to closing the half-million-dollar funding gap at his office than his counterparts at King County. While King County Prosecuting Attorney Dan Satterberg is diverting about 2,300 low-level drug cases away from prosecution and jail to help shave roughly $4 million from his budget, Carr is digging in his heels at city council meetings and defending an enforcement-heavy approach to low-level drug-possession charges.
One commenter points out an important difference between the county and city:
Satterberg has two levels of court to work with – the Superior Court, which can handle felonies, and the District Court, which cannot. Because of this, he can send his felony drug cases from Superior Court down to the lower court to be treated as gross misdemeanors and misdemeanors.

In contrast, Carr only has one court system – the Seattle Municipal Court. This is the equivalent of King County District Court, in that it too only handles gross misdemeanors and misdemeanors. Carr, unlike Satterberg, has no lower court to “divert” his drug cases to.

Public Defense to Be Hit by County Budget Cuts?

In her column, Nicole Brodeur sounds the alarm about proposed cuts to public defense in King County: the County Executive's budget would allow four 1/2-time lawyers for about 2,900 "expedited felonies" a year. Those are cases that are reduced to misdemeanors if the defendant pleads guilty. Short-order justice is served Seattle Times Newspaper, Nov. 18, 2008.

If Sims' cuts go through, each half-time lawyer will be responsible for 725 of the expedited felonies. That's an hour and 20 minutes per client.

The thought makes Kelly Canary of the Northwest Defenders Association shiver. She got into law to defend the defenseless. But this is crazy.

"An hour and twenty minutes to read the police report, find out if your client was targeted because he is a person of color, talk to witnesses and see whether your client may actually be innocent, meet your client and hold the prosecutor to their burden of proof beyond a reasonable doubt," Canary said, then sighed.

"It's McJustice."

Indeed, I've had nail appointments that lasted longer than that. Shouldn't a decent defense take longer than a manicure and pedicure?
Graphic from Oregon Board of Cosmetology Safe Salons Public Education Program.

Monday, November 17, 2008

Sex Offender Policy Blogs

I just got a note from Erik Mart, a registered sex offender who is blogging about his experience at Monster Mart. He is also working on a memoir, Monstermart: How I Joined America's Most Unwanted. The Stranger had an article about him last year; see my post here.

If you're interested in the topic, check out Sex Offender Issues
, a blog with lots of content -- news, stats, studies, opinion. The author, ZMan emphasizes:

I want to first start off with saying I am NOT pro-pedophile or pro-sex offender but pro-Constitution. I am totally against any form of abuse to any animal or human being. Anybody who commits any crime should be punished. But, once that person has done the time they were convicted under, via contract, and is off parole and/or probation, they should be able to get on with their lives without all the rules and regulations. No other criminal has to live by such draconian laws, so why sex offenders? If we must do this for sex offenders, then I think, to be fair, all criminals must be under similar rules and regulations.
For sentencing generally, you can't beat Prof. Douglas A. Berman's Sentencing Law and Policy (the first blog cited by the U.S. Supreme Court!). Berman's posts about sex offender sentencing are here.

Tuesday, November 11, 2008

Access to Justice Board Members Needed

The Washington State Access to Justice Board is looking for three new members. One must be an attorney, one must be a non-attorney, and one can be either. The application deadline is Nov. 30.

A demonstrated commitment to equal justice principles and an enthusiastic commitment to serve in equal justice community leadership are required, as are strong communication skills and an ability to see the "big picture." Courage, compassion, consideration, patience, humility, passion, and humor are all valuable traits in ATJ Board members.

The ATJ Board strives for a membership that reflects ethnic, racial, gender, geographic, and other diversity. To that end, in seeking candidates to fill the current at-large vacancies, the ATJ Board's Nominating and Leadership Development Committee is specially seeking persons with experience in Washington's pro bono community (as staff, board members, or volunteers), and/or persons who currently live or work in the Northern Olympic Peninsula or Eastern Washington, and/or persons who will otherwise increase the Board's diversity. Candidates for the statewide staffed legal services programs position should have relevant experience with such a program.
More information here.

Citing Workload, More Public Defenders Are Refusing New Cases

Citing Workload, Public Lawyers Reject New Cases, N.Y. Times, Nov. 9, 2008, at A1. Budgets down, caseloads up.

“Right now a lot of public defenders are starting to stand up and say, ‘No more: We can’t ethically handle this many cases,’” said David J. Carroll, director of research for the National Legal Aid and Defender Association.
Defendants feel greater pressure to plead guilty -- which can affect their immigration status as well sentences for any future convictions.

This story links to an article from last year Adam Liptak, Public Defenders Get Better Marks on Salary, N.Y. Times, July 14, 2008 (discussing Radha Iyengar, An Analysis of the Performance of Federal Indigent Defense Counsel, Nat'l Bur. Econ. Research Working Paper 13187, June 2007).

Thursday, October 30, 2008

PreLaw Magazine's Top Public Interest Schools

PreLaw magazine has an article discussing support for public interest work in law schools. Our town looks good: in the magazine's ranking, the UW is #8 and Seattle U is #16. Best Public Interest Law Schools, preLaw Magazine - Fall 2008, at 28.

Everett judge won't hear case of lab monkey's death

Pasado's Safe Haven tried to file a citizen's complaint against employees of an animal testing lab who scalded a monkey to death when they ran its cage through a washer. The Snohomish County prosecutor's office and the Everett City Attorney had declined to file charges, and Everett District Judge Roger Fisher declined to allow the citizen's complaint to go forward. Everett judge won't hear case of lab monkey's death | Seattle Times Newspaper, Oct. 30, 2008.

Pasado's was represented by Adam Karp, a UW grad who teaches animal law at the UW and Seattle U.

Saturday, October 25, 2008

WSBA's YouTube Contest

The Washington State Bar Association invites you to create a short video (3 minutes max.) showing "your vision of justice for all as citizens of Washington state." Not only do you get to use your creativity and express yourself, but you also will be in the running for two $1000 prizes -- one to be selected by a panel of judges and one People's Choice winner. You might even get both!

Details about the contest are here. The deadline for posting entries on YouTube is June 15, 2009.

Tuesday, October 21, 2008

Alliance for Justice: Our Rights, Our Courts, Our Future

The Alliance for Justice held a day-long program, Our Rights, Our Courts, Our Future on Sept. 25. Now you can watch video of most of the speakers (and read a transcript of one speaker's remarks) here.

  • Access Denied? Our Courts and Consumer Protection. Panel includes Diana Levine, the plaintiff in a case before the Supreme Court this Term (see Drug Label, Maimed Patient and Crucial Test for Justices, N.Y. Times, Sept. 18, 2008).
  • Executive Privilege: Abuse of Presidential Power in the Bush Administration
  • Repercussions of Judicial Selection in the Bush Administration.
Also available:
  • transcript of May 28, 2008, luncheon speech by Hon. Patricia M. Wald (D.C. Cir.)
  • Video, Supreme Injustices. (This is one of the films Abby Ginzberg recommended last week.)
  • Herman Schwartz Distinguished Lecture (March 3, 2008) by Jeffrey Toobin (author of The Nine: Inside the Secret World of the Supreme Court, KF8748 .T66 2007 at Classified Stacks).
  • Herman Schwartz Distinguished Lecture (July 25, 2007) by Sen. Richard Durbin.

Monday, October 20, 2008

Conference on Judicial Selection

A couple of weeks after the election, come to the UW for Selecting Judges in Washington -- Looking Back to 2008 and Forward to 2009, sponsored by the Judicial Selection Coalition and the University of Washington School of Law.

This conference is for anyone interested in the way we select judges in Washington. Conference speakers will discuss:
  • What happened in Washington State judicial elections this year? Who ran, who contributed money, what happened? A panel discussion with:
  • What do Washington voters think about methods of judicial selection? A professional survey of several thousand randomly selected Washington voters has just been completed
    under the supervision of Professor David Brody, WSU. Professor Brody will summarize the results.

  • Should Washington adopt public financing of judicial elections? A report on proposed legislation from Craig Salins, Executive Director, Washington Public Campaigns.

  • Can judicial performance evaluations improve judicial elections? A panel discussion including Jordan Singer of the Institute for the Improvement of the American Legal
    , and representatives of the King and Pierce County courts to comment on judicial performance evaluations conducted in those counties this year.

  • What is happening in other states? A view from the national perspective by James Sample of the Brennan Center for Justice at NYU School of Law.

Saturday, October 18, 2008

O'Scannlain on Statutory Construction

Ninth Circuit Judge Diarmuid O'Scannlain discusses competing schools of statutory construction -- textualism and purposivism -- and comes down squarely on the side of textualism. Hon. Diarmuid. E. O'Scannlain, Lawmaking and Interpretation: The Role of a Federal Judge in Our Constitutional Framework, 91 Marq. L. Rev. 895-915 (2008). Download a pdf here; listen to a webcast here.

Man who killed prowler says he aimed for legs

Man who killed prowler says he aimed for legs, Seattle P-I, Oct. 16, 2008. Prof. John Junker is quoted on the law of self-defense:

"In general, one has to have a reasonable belief that there is going to be a deadly attack by another person," said John Junker, criminal law professor at the University of Washington. "You can't shoot somebody for running away with your stuff."

But there have been a lot of cases, some stemming from police shootings, where the shooter mistakenly thought the other person was armed. Case law says the jury must judge the facts from the shooter's point of view and the information he had, Junker said.

"It's up to the lawyers to try to prove to the jury what really happened and whether it was reasonable for him to believe that," he said.

Weekly Skewers Judicial Election Process

This week's cover story in The Seattle Weekly is sharply critical of the judicial election process in Washington State: Damon Agnos, The Way We Elect Judges Is a Sham, Seattle Weekly, Oct. 15, 2008.

One resource Agnon mentions is This site pulls together candidate's statements, press, and ratings. You can click on a county to find all the candidates there.

Friday, October 17, 2008

Gallagher Blogs

Hey, there's a new blog in the neighborhood: Gallagher Blogs, from a group of us at the Gallagher Law Library, will have resources, tips, and items of interest to the law school community.

For the last few days as I've been highlighting documentaries in our collection, I've posted both here and there. I'm going to continue highlighting some documentaries on Gallagher Blogs but will stop the series here (unless there's something that cries out "Trial Ad" to me).

Brick by Brick: A Civil Rights Story

Brick by Brick: A Civil Rights Story follows three Yonkers families during a struggle over housing desegregation. It goes back decades to describe how a ghetto was created through public policies, so that people of color mostly lived in segregated neighborhoods with very poor schools. Members of the community organized to fight for change, and the film

tracks the resulting federal US v Yonkers litigation, which challenged neighborhood and educational discrimination. Coming back out of the courtroom into the community, the story describes the bitter local confrontation about race and the very concept of community that follows. From a first person perspective, characters weave a tale of years of work attempting to achieve justice, with a labyrinth of successes and setbacks that the struggle entails.

At its close, Brick by Brick shows what has happened both to a community and to individual citizens, committed to their city. It also illustrates the difference housing opportunity can make in a single family’s life. The story brings the fiery legal and political crucible of a contemporary city and its larger implications for our nation today onto the screen.
It's in the library: HD7288.76.U5 B75 2007 at Classified Stacks.

The print is too small to read here, but this KeyCite display will show you how complex the case's history is:

Dates range from 1995 to 2000.

KIND - Kids In Need of Defense

Microsoft and 25 law firms have just launched a project to provide legal representation to immigrant children who are in danger of deportation: KIND - Kids In Need of Defense. Two other corporate law departments are also involved.

Microsoft Corporation and the internationally acclaimed actress and UNHCR Goodwill Ambassador Angelina Jolie ask for your support in building a pro bono movement of law firms, corporate law departments and NGOs committed to providing fair, competent and compassionate legal counsel to unaccompanied immigrant children in the U.S. We're calling this new coalition KIND-but it's about more than compassion, it's about protecting the rights of children.

KIND has an ambitious but achievable agenda. By 2010, we intend to provide legal representation for 100% of unaccompanied children-approximately 2100 children a year-in those areas of the country where the need is greatest: Los Angeles, Seattle, Houston and the Northeastern corridor of the U.S. And we'll expand our operations throughout the country based on the "best practices" developed through this first critical phase of work.
Press:Microsoft has already sponsored Volunteer Attorneys for Immigrant Justice, which represents unrepresented children in Washington State. Because of VAIJ, Washington is the only state where all immigrant children in the system are represented.

According to the P-I,
KIND will also provide fellowships to attorneys at legal aid organizations so they can exclusively represent immigrant children. The program will also pay for coordinators in the nine cities.

Kevin Coe Committed

Kevin Coe -- alleged to be Spokane's "South Hill rapist" but only convicted of four rapes and, after appeals, just one -- was found by jury yesterday to be a "sexually violent prdator" who should be indefinitely committed to a mental facility. For some, Coe verdict represents simple justice; for others, it's a travesty, Spokesman Review (Spokane), Oct. 17, 2008.

The Spokesman Review has extensive coverage of the trial in this page with links to stories and videos and in this blog.

My earlier posts about the case are here.

Thursday, October 16, 2008

Worker Safety Documentary

When filmmaker Abby Ginzberg visited the Law School this week, she donated to the library Those Who Know Don't Tell: The Ongoing Battle For Workers' Health. Narrated by Studs Terkel, this film

traces the history of the struggle to rid the workplace of occupational hazards. Using archival footage, union songs and interviews, it tells its story both from the point of view of the labor activists and those within the medical profession who became their advocates.

The fight for occupational health began almost one hundred years ago with Dr. Alice Hamilton's discovery of lead-caused industrial disease. She was followed by others such as Dr. Harriet Hardy of M.I.T., who discovered the dangers of beryllium. More recently, Dr. Irving Selikoff uncovered the danger of asbestos to workers and publicized his findings despite pressure from the asbestos industry to silence him.

Through tragedies such as the Triangle Shirtwaist Fire, unions and workers began effective organizing for occupational safety. This powerful discussion starter should be shown in courses dealing with labor, American history, community medicine and public health.
It's being processed, but it will soon be available at HD7654 .T57 1989 in the Classified Stacks.

J.L. Chestnut, Campaigning For Rights In Selma

This morning I listened to a wonderful interview: J.L. Chestnut, Campaigning For Rights In Selma : NPR, Fresh Air, Oct. 3, 2008. After Howard Law School, Chestnut returned home to Selma, the only black lawyer in a town where blacks didn't even serve on juries and the white bar leaders passed a resolution telling the town's banks not to lend him money to open his practice.

The interview was recorded in 1990, but rebroadcast recently because Chestnut just died. Here's an obituary: Bruce Weber, J.L. Chestnut Jr., Early Leader in Civil Rights Movement, Is Dead at 77, N.Y. Times, Sept. 30, 2008.

Chestnut's memoir, Black in Selma: The Uncommon Life of J.L. Chestnut Jr., is available through Summit.

Wednesday, October 15, 2008

The Judge and the Fanatic

Yesterday I promised to highlight some documentaries in our collection. Today's is The Judge and the Fanatic: Koranic Duels Against Terror, BL65 .T47 J83 2007 at Classified Stacks.

The interpretation of Islamic texts [is] the focus of Yemeni Judge Hamoud al Hitar and his Religious Dialogue Committee, which seeks to rehabilitate the most hardened Islamic radicals through a close reading of the Qur'an and the sunna (traditions from the life and teaching of the Prophet Muhammad). Tom Meffert's richly insightful documentary explains how agents of terrorism have systematically sought to change the meaning of Islam to suit their own ends. Far from being a fiery text full of blood and revenge, many of the Qur'an's 124 verses advocate tolerance, peace and hospitality, and advise that non-Muslims should be treated with charity and respect. It is this that the judge tries to make clear to the disaffected young men of his country turning to extremism. Yemen's war of words with the dark heart of terrorism has enormous implications, not just for that country, but the larger world as well.
-- description from Salt Spring Film Festival 2006

I didn't read the producer's description because it is in German, but I copied the photo (above) from that page. (Our library bought the English version of the film.)

Courts Give Addicts a Chance to Straighten Out

King County's Drug Diversion Court is featured in a New York Times story: Courts Give Addicts a Chance to Straighten Out -, Oct. 14, 2008.

The program is at risk because of the county's dire budget situation.

County Executive Ron Sims office has budget information -- including links to news stories -- here.

Thanks: Alex Fleming Freeburg.

Suit against God thrown out over lack of address

Suit against God thrown out over lack of address | Seattle Times Newspaper, Oct. 15, 2008.

"Given that this court finds that there can never be service effectuated on the named defendant this action will be dismissed with prejudice," Polk wrote.

Chambers, who graduated from law school but never took the bar exam, thinks he's found a hole in the judge's ruling.

"The court itself acknowledges the existence of God," Chambers said Wednesday. "A consequence of that acknowledgment is a recognition of God's omniscience."
Thanks: Roxanne Eberle.

Tuesday, October 14, 2008

Asylum DVD

This week's Social Justice Tuesday speaker was Abby Ginzberg, a lawyer turned documentary filmmaker.

To follow up on the enthusiasm in the room, I'll feature some of films in our collection in the next several days. Today: Well-Founded Fear, a look at the system for granting asylum. KF4836 .W45 2000 at Classified Stacks.

At 3:30, there will be a showing of her film, Soul of Justice: Thelton Henderson's American Journey.

Eyewitness testimony still key to cases when there's no DNA

DNA exonerations led reporters from the Dallas Morning News to look into the use of eyewitness testimony in recent robbery trials. Eyewitness testimony still key to cases when there's no DNA | Dallas Morning News, Oct. 14, 2008.

See also: Wrongfully convicted cases cleared in Dallas County since 2001, Oct. 8, 2008.

This page has profiles of exonerees and links to other stories in the series.

Monday, October 13, 2008

Burien man who killed 3 for money sentenced to 97 years in prison

Burien man who killed 3 for money sentenced to 97 years in prison, Seattle P-I, Oct. 10, 2008.

After a two-month trial, the jury began deliberations, but on the second day, one juror asked to be excused because she could no longer abide by the court's instructions. The judge excused her and appointed an alternate.

But the defense attorney, Pete Connick, asked for a new trial. When the judge questioned the first juror, she said that she had felt like a token -- she was the only black on the jury for the trial of a black defendant. The alternate who replaced her was also black.

Other jurors provided statements saying they witnessed no racist remarks or bias. In a written decision, the judge concluded that Brown's difficulties stemmed from a disagreement with the other 11 jurors over how to apply the law.
The prosecutor was Senior Deputy Prosecuting Attorney Hugh Barber, who is also a UW Trial Ad instructor.

Vancouver asks for federal probe of police officer's firing

Vancouver, WA, settled a discrimination case brought by a police officer for $1.65 million. Responding to criticism of the city's handling of the case, the mayor is now asking the U.S. Attorney's office for the Western District of Washington to review it. Vancouver asks for federal probe of police officer's firing -, Oct. 11, 2008.

The mayor wrote to Assistant U.S. Attorney Kelly Harris, who is also a UW Trial Ad instructor.

Profile of Julia Gold

Check out the profile of Julia Gold, the director of the University of Washington's Mediation Clinic: Jessica Chiu, U.W. Clinic Has Touch of Gold, Bar Bull., Oct. 2008.

King County Budget Cuts

King County is facing a huge budget shortfall. Why? "Bottom line: higher costs, flagging revenues." Q&A | Dissecting King County's general-fund shortfall, Seattle Times, Sept. 29, 2008. County shortfall to trigger up to 255 layoff notices, Oct. 13, 2008.

Sheriff Sue Rahr has said she will have to eliminate deputy positions, likely cutting back the Marine Patrol and investigations of narcotics, organized crime, cold cases, domestic violence and thefts and vandalism.

Prosecutor Dan Satterberg has already reduced his staff and next Monday will begin filing many drug-possession cases and thefts or vandalism with losses below $5,000 as gross misdemeanors rather than felonies.
Q&A supra.

One article focuses on the county-supported programs that support victims of sexual assault: Many King County service providers face significant cuts, Oct. 13, 2008.
Their efforts are important not only because they help crime victims heal but because they play a key role in bringing sex offenders to justice.

Without public funding, said Mary Ellen Stone, executive director of the [Sexual Assault Resource Center], many victims of sex crimes are unable to stick with a case through trial. "Some people assume you just make a report. No. This turns your life upside down for a year and a half at least."

Senior Deputy Prosecuting Attorney Lisa Johnson, who heads the prosecutor's special-assault unit, said victim-advocate groups are "absolutely critical and vital" to successful convictions. "We couldn't do our cases without them."

Sheriff arrests parents in horrific child abuse case

Sheriff arrests parents in horrific child abuse case, Seattle P-I, Oct. 13, 2008. The facts as reported are very upsetting (a teenage girl starved and denied water over a period of years). Of interest for people thinking about trial work are the documents that the P-I has posted:

  • Information
  • Certification for Determination of Probable Cause
  • Prosecuting Attorney Case Summary and Request for Bail and/or Conditions for Release
It's not that they're extraordinary documents -- just that law school reading doesn't often include documents like these, so you might not have seen them.

Help for Pro Se Divorce Petitioners

Washington Law Help now has an online "interview" to walk people through the process of filling out divorce forms. It only applies if the couple does not have minor children and if domestic violence is not an issue. It could be really helpful to someone overwhelmed by the standard forms.

Washington LawHelp

is a guide to free civil legal services for low-income persons and seniors in Washington. This site provides legal education materials and tools that give you basic information on a number of legal problems, and in some cases, detailed instructions and forms to help you represent yourself in court. You can also locate information on free legal aid programs in Washington, including basic eligibility and contact information.

This guide is a free service which is made possible through a grant from the Legal Services Corporation. The web site template was created by Pro Bono Net and is maintained by staff at the Northwest Justice Project in Seattle.
Most materials on the site were prepared by the Northwest Justice Project, but many are from other organizations, including Columbia Legal Services, the Northwest Women's Law Center, Washington Protection & Advocacy System, Child Advocacy Central, the ACLU of Washington, Washington Department of Social and Health Services, Northwest Immigrant Rights Project, Seattle Public Library, the Washington State Office of the Attorney General, the Tenants Union of Washington State, and more.

This site is a tremendous resource for the thousands of people who do not have access to lawyers. (It can also be a resource for law students and lawyers -- a good summary of the law or a good form are always welcome.)

Sunday, October 12, 2008

Jury Symposium

The Northern Illinois Law Review recently (Summer 2008) had a symposium, The Modern American Jury:

Washington's First Native American Judge

On October 1, the State Supreme Court honored Judge James M. Phillips of Grays Harbor Superior Court, who is believed to be Washington's first Native American judge. He was on the bench from 1929 to 1950. Washington Courts press release, Sept. 23, 2008.

Learning Voir Dire From The O.J. Trial

Anne Reed, the lawyer and jury consultant who writes the Deliberations blog, has some great ideas for improving your voir dire skills. CNN posted the completed juror questionnaires from O.J. Simpson's robbery trial, and Anne suggests that you can, first, use the questionnaires to think about drafting your own, since some of the questions are "particularly well designed to get direct information about jurors' specific experiences and conduct." Deliberations: Learning Voir Dire From The O.J. Trial, Oct. 8, 2008.

Second, for as good a voir dire training exercise as you're ever likely to find, print the twelve questionnaires out and practice with them, with a group if possible. What if these twelve people were the venire instead of the final group, and you had to pick a jury of six?

If you're like most lawyers, this project will be harder than you expected.

For other juror questionnaires, see Deliberations' library of sample juror questionnaires -- a wonderful resource.

Friday, October 10, 2008

Civ Pro Rap

An artist named Notorious B.O.A.L.T. has rapped the Federal Rules of Civil Procedure:

I haven't listened to the whole thing. I'm told that it, like many raps, contains strong language and references that some people might find offensive. But it's art. About the Federal Rules of Civil Procedure. Wow.

Thanks: Pablo Sandoval.

Irate Judge Blasts Typos and Errors in Filing, Slashes Fees

Irate Judge Blasts Typos and Errors in Filing, Slashes Fees by $154K | ABA Journal - Law News Now, Oct. 8, 2008. Sloppy work has a cost!

For a similar example (from the same federal district court but a different judge), see this post. And for a a lot of examples (and tips on how to research them), see When Judges Scold Lawyers, 96 Law Libr. J. 557 (2004).

Thanks: Maureen Howard.

Wednesday, October 8, 2008

Some Recent Books on Judges

Interested in judges' lives and work? Here are some recent books (and one set of DVDs) for you:

G. Edward White, The American Judicial Tradition: Profiles of Leading American Judges, KF8744 .W5 2007 at Classified Stacks.
Publisher's note

... G. Edward White updates his series of portraits of the most famous appellate judges in American history from John Marshall to Oliver W. Holmes to Warren E. Burger, with a new chapter on the Rehnquist Court. White traces the development of the American judicial tradition through biographical sketches of the careers and contributions of these renowned judges. [H]e argues that the Rehnquist Court's approach to constitutional interpretation may have ushered in a new stage in the American judicial tradition.

Mary L. Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey, KSK2095 .D83 2008 at Classified Stacks. Publisher's description:
Thurgood Marshall became a living icon of civil rights when he argued Brown v. Board of Education before the Supreme Court in 1954. ... When in 1960 Kenyan independence leaders asked him to help write their constitution, Marshall threw himself into their cause. ...
... Mary Dudziak recounts with poignancy and power the untold story of Marshall's journey to Africa. African Americans were enslaved when the U.S. constitution was written. ...

Tinsley E. Yarbrough, Harry A. Blackmun: The Outsider Justice, KF8745.B555 Y37 2008 at Classified Stacks. Publisher's description:
Thoroughly researched, engagingly written, Harry A. Blackmun: The Outsider Justice offers an in-depth, revelatory portrait of one of the most intriguing jurists ever to sit on the Supreme Court. Relying on in-depth archival material, in addition to numerous interviews with Blackmun's former clerks, Yarbrough here presents the definitive biography of the great justice, ultimately providing an illuminating window into the inner-workings of the modern Supreme Court.

Richard A. Posner, How Judges Think, K2300 .P67 2008 at Classified Stacks. Publisher's Description:
A distinguished and experienced appellate court judge, Richard A. Posner offers in this new book a unique and, to orthodox legal thinkers, a startling perspective on how judges and justices decide cases.

Clarence Thomas, My Grandfather's Son, KF8745.T48 A3 2007 at Classified Stacks. Publisher's description:
Provocative, inspiring, and unflinchingly honest, My Grandfather's Son is the story of one of America's most remarkable and controversial leaders, Supreme Court justice Clarence Thomas, told in his own words.

Jeffrey Rosen, The Supreme Court: The Personalities and Rivalries That Defined America, KF8744 .R67 2007 at Good Reads, Classified Stacks. The publisher's description is here.

This book is a companion to the PBS series, The Supreme Court, KF8742 .S856 2007 at Classified Stacks (4 DVDs).

Matthew J. Streb, ed., Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections, KF8785.A7 R86 2007 at Classified Stacks. The publisher's description is here.

Tuesday, October 7, 2008

Federal Way police want stiffer penalties for fake-gun users

Federal Way police want stiffer penalties for fake-gun users | | Tacoma, WA, Sept. 15, 2008. "Federal Way Police Chief Brian J. Wilson wants the Legislature to change second-degree assault so it includes the use of Airsoft-type pistols." On the one hand, someone brandishing a toy gun or paintball gun that looks like a real gun can create a dangerous situation: the police are more likely to fire, endangering the gun holder and bystanders.

But on the other hand,

[A] local defense attorney, Brett Purtzer of Tacoma, said the proposed change in the law isn’t a good idea.

“I think the statute is pretty clear it has to be a deadly weapon,” Purtzer said. “If you start adding things in there, where do you draw the line?”
I didn't find out how the city council voted.

Ex-judges sue Rossi, builders, challenge fundraising

Former state Supreme Court Justices Faith Ireland and Robert Utter are the plaintiffs in a lawsuit challenging campaign activities of the Building Industry Association of Washington. They allege that governor candidate Dino Rossi improperly participated in BIAW's actions. Ex-judges sue Rossi, builders, challenge fundraising | Seattle Times Newspaper, Oct. 7, 2008.

The Washington Outsiders blog reprints a press release from Ireland and Utter.

For more analysis of this case -- and cases brought by Attorney General Rob McKenna -- see David Brewster, The Screws of Buildergate Tighten on Dino Rossi, Crosscut, Oct. 6, 2008.

Sunday, September 28, 2008

Evidence tape is blank, so woman’s case tossed

Olympia police made a video of people blocking streets to protest the use of the Port of Olympia to send vehicles and equipment to the Iraq war. Now they're prosecuting the protesters, but it turns out that their DVD is blank. Evidence tape is blank, so woman’s case tossed | | Tacoma, WA, Sept. 27, 2008:

Municipal Court Judge Scott Ahlf ruled Friday that her ability to defend herself at trial would have been “unfairly prejudiced” by the loss of a video recording of the Nov. 10 protests."
The ruling may affect dozens of others being prosecuted. Two of the protesters are suing the city for civil rights violations -- the video might have been handy for them, too.

Tuesday, September 23, 2008


I was tickled to see this on a bus this afternoon:

Convincing the Judge: Practical Advice for Litigators

New in the Library: Convincing the Judge: Practical Advice for Litigators, KF380 .K84 2008 at Classified Stacks. This book is from the ABA's General Practice, Solo and Small Firm Division. Here's the ABA's blurb: "Learn what judges like and do not like and how to deal with the judge throughout the entire litigation process. This book distills the advice of judges to practitioners appearing in their courtrooms and provides practical advice on case management, all phases of trial, and appeals. It also explains the judicial role and suggests tips for dealing with a difficult judge. Each chapter includes valuable practice tips and specific examples for enhancing your litigation skills.

Among the topics covered include:

* Cooperation between judge and counsel

* Getting to know the judge

* What trial judges ultimately want

* Sure-fire ways to alienate the trial judge

* How attorneys can help judges manage cases

* Tips for oral argument

* Achieving success in a settlement conference

* Refreshing your knowledge of basic hearsay objections

* The relationship between judge and jury

* Relating to the jury

* Suggestions for effective voir dire

* How not to make an opening statement

* Helping jurors with important exhibits

* Preparing an effective closing argument

* The art of drafting good jury instructions"

The Litigation Manual: Jury Trials

New in the Library: The Litigation Manual: Jury Trials, KF8972 .L58 2008 at Classified Stacks.

According to the publisher (the ABA Section of Litigation), this book

includes the most useful articles from Litigation journal, taking you through the steps of a jury trial. For those who do not try any jury cases the information will be enlightening. In reading them you will better understand the processes by which cases are tried, decisions made and justice arrived at in American courts. For lawyers who try only a few cases, you will gain from the years of courtroom experience of others. And for courtroom veterans, old trial skills will be re-enforced, bad habits questioned and per force, new lessons learned. Topics include:

* Perspectives on the Future of Jury Trials

* Should You Have a Jury Trial?

* Understanding Today's Jurors

* Finding the Jurors You Want

* Instructing the Jury

* Winning Over the Jury

* Telling the Jury a Story

* Trying the Jury Case: Court Room Techniques

* Opening Statements

* Witnesses

* Complex Cases

* Closing Argument

* After the Jury Trial

The book provides concrete, time-proven techniques and innovative ideas from many of the country's preeminent trial lawyers and judges. And it contains some of the best legal writing available -- clear, informal and never dull. Read it and you will learn how to deal more effectively with the situations you face in preparing for and conducting a jury trial.

Friday, September 19, 2008

Broader Admissibility of History of Sexual Offenses

This year the legislature enacted a law making an exception to ER 404(b). Now it is easier to bring in evidence of past sexual offenses.

Last month the law was used for the first time in the prosecution of a 79-year-old man for allegedly molesting a 7-year-old girl during a family vacation. The jury was able to hear testimony from other relatives about his abuse of them in incidents spanning 40 years. Rape trial lets family share decades of pain, secrets | Seattle Times Newspaper, Aug. 19, 2008; Jury finds California man guilty of molesting young relative | Seattle Times Newspaper, Aug. 21, 2008. The second story says "Defense attorneys . . . expect the new law soon to face challenges in higher state courts."

Here's ER 404(b):

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The new law is Laws of 2008, Chapter 90 (links to the bill reports are here), codified at RCW 10.58.090:
(1) In a criminal action in which the defendant is accused of a sex offense, evidence of the defendant's commission of another sex offense or sex offenses is admissible, notwithstanding Evidence Rule 404(b), if the evidence is not inadmissible pursuant to Evidence Rule 403.

* * *

(5) For purposes of this section, uncharged conduct is included in the definition of "sex offense."

(6) When evaluating whether evidence of the defendant's commission of another sexual offense or offenses should be excluded pursuant to Evidence Rule 403, the trial judge shall consider the following factors:

(a) The similarity of the prior acts to the acts charged;

(b) The closeness in time of the prior acts to the acts charged;

(c) The frequency of the prior acts;

(d) The presence or lack of intervening circumstances;

(e) The necessity of the evidence beyond the testimonies already offered at trial;

(f) Whether the prior act was a criminal conviction;

(g) Whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence; and

(h) Other facts and circumstances.
Thanks: Jill Mullins.

Thursday, September 18, 2008

American Exception Series in New York Times

The is running "American Exception," a series by Adam Liptak about "commonplace aspects of the American justice system that are almost unique in the world." Today's piece was about the declining influence of the Supreme Court: the courts of other nations used to look to Supreme Court precedents much more than they do now. U.S. Court Is Now Guiding Fewer Nations, N.Y. Times, Sept. 18, 2008.

Several reasons are suggested:

  • Many countries' constitutions and bills of rights were new in the second half of the twentieth century, so their courts used Supreme Court precedents. Now those countries have a larger body of precedents of their own.
  • Those countries are now citing each others' cases now, more, too.
  • The trend in many jurisdictions is toward expanding rights -- and our Supreme Court hasn't been going in that directions in the last 20 years as much as it did in the 1960s and 1970s. The Canadian Supreme Court and the European Court of Human Rights are now more influential.
  • Some foreign judges may be put off by the vocal Americans who say that American courts shouldn't cite foreign precedents.
Earlier articles in the series:

Supreme Court Poised to Enter Pre-Emption Debate -

Supreme Court Poised to Enter Pre-Emption Debate -, Sept. 18, 2008. The Court is reviewing a case from Vermont, in which a jury awarded damages against a drug company for failing to have a label warning against administering the drug through IV push. The company argues that the state law is pre-empted by a federal law requiring drug labels to be approved by the FDA.

The question on which the Supreme Court granted cert in Wyeth v. Levine, No. 06-1249 is:

Whether the prescription drug labeling judgments imposed on manufacturers by the Food and Drug Administration ("FDA") pursuant to FDA's comprehensive safety and efficacy authority under the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., preempt state law product liability claims premised on the theory that different labeling judgments were necessary to make drugs reasonably safe for use.
The briefs are available here.

Wednesday, September 17, 2008

Distorting the Law

A few years ago, I wrote a short post about Distorting the Law: Politics, Media, and the Litigation Crisis, by William Haltom and Michael McCann (KF380 .H358 2004 at Good Reads). At that time, I just quoted the publisher's description. Now I've read the book and I'd like to say a little more.

The book provides an interesting analysis -- based on heaps of research -- of the national debate on tort reform and the so-called litigation crisis. Unfortunately for the general reader, it's written in a dense, academic style. I'm a pretty good reader, familiar with law (although not with academic political science), and I found the book pretty challenging. But, as I said, it's interesting. One help, if you want an overview, is the authors' website,, which includes a chapter-by-chapter summary. My own (selective) summary follows.

Chapter One, "The Social Production of Legal Knowledge," discusses how Americans come to "know" things about the civil legal system. It uses the example of one case, showing how the case became a "fable" told by tort reformers with little link to what actually happened. According to the fable, a jury awarded a woman $1 million because her psychic powers were damaged by a CAT scan. In fact, her claim was for headaches, pain, and inability to work stemming from a dye used to prepare for a CAT scan she never had. Although a jury did award her damages, the trial judge set aside the verdict and ordered a new trial and later the case was dismissed and the dismissal was affirmed on appeal. So the fable about runaway juries and windfall damages turns out to be about a plaintiff who didn't get a dime.

Chapter Two, "Pop Torts," goes further into the creation and wide dispersal of anecdotes depicting corporations as the victims of greedy trial lawyers and plaintiffs. The anecdotes build on themes of individual responsibility and distrust of lawyers.

Chapter Three, "In Retort: Narratives versus Numbers," explores the way that academics have responded to the claims of tort reformers -- and why the response hasn't had much impact in the debate. The public has come to believe that there's a litigation explosion, that it's too easy to sue, that juries like to stick it to corporations -- but "the impressive array of data that social scientists have marshaled to discredit the legal lore disseminated by tort reform polemicists" (p. 108) doesn't reach the public.

Our primary point ... is that the studies we have recounted here are, by standards of ordinary discourse, unfamiliar and difficult, and, by standards of opinion leaders, esoteric and tedious. Such sophisticated forms of knowledge simply do not translate into modern mass communication.

[This] is not intended as a critique of social scientific endeavors. ... [W]e realize that our own academic product suffers from many of the same professional liabilities that we identify in the work of others. But that is our point. ...

We do not intend to suggest ... that social scientists cannot contribute effectively to mass cultural knowledge. Sophisticated research can be used in service of mass influence, but to do so it must transcend narrow academic conventions. ... [S]cholars need to connect their powerful debunking efforts to more artful narratives that illustrate the complexities of tort law practice, highlight its implications in experiential terms, link tort law remedies to our nation's deepest values, and yet nurture the aspiration of rendering these legal processes ever more accessible, just, and democratic.
pp. 109-10.

The next chapter discusses the tactics ATLA (now American Association for Justice) has used in response to the tort reform movement -- focusing on lobbying and legal challenges, not public opinion.

Chapter Five examines the media's treatment of tort issues. Journalistic standards -- what makes a story newsworthy -- contribute to distorted views of the legal system. For example, a million-dollar verdict is more newsworthy than a $50,000 verdict or a dismissal, so it's no surprise that big verdicts get a lot of coverage and many people believe that huge verdicts are much more common than they are.

Chapter Six continues this theme using the specific example of the notorious McDonald's "hot coffee" case. I had never read as much detail about the case -- the facts, the claims, the evidence, and so on. Haltom and McCann analyzed coverage of the case in newspapers and found, for instance, that there was a lot more coverage of the initial verdict (with its startling and newsworthy $2.7 million in punitive damages) than there was of the judge's reduction of the punitive damages and the later settlement of the case. And there wasn't much coverage of why the jury awarded punitive damages: because McDonald's hadn't done anything about 700 previous complaints about scalds from coffee; the jury thought that the way to get the attention of the huge corporation was to award punitive damages -- the huge number was about the amount of profit McDonald's made from coffee in two days.

Chapter Seven looks at the coverage of tobacco litigation.

A couple of the authors' observations from their concluding chapter, "Law Through the Looking Glass of Mass Politics":
[N]ews coverage almost entirely overlooks the limits on the practical options available to injured citizens. It obscures the fact that most lawsuits for products liability, medical malpractice, and workplace injuries represent a last (not a first) resort for many citizens lacking sufficient personal resources to purchase adequate private insurance, absorb damages, cover health costs from injuries, survive unemployment, and the like. Indeed, the primary example of plaintiffs in this book -- retirees like Stella Liebeck whose low-wage job provided scant savings, a meager retirement fund, and inadequate health care coverage; widows and widowers of smokers or workers subjected to asbestos; women victimized by unsafe, unethically marketed contraceptives, high absorbency tampons linked to toxic shock syndrome, and products like silicone breast implants promising to enhance esteem or appeal; low-income citizens who cannot buy high-priced products, live in environmentally unsafe areas, and labor in unsafe workplaces -- are hardly atypical of those who turn to legal action for lack of alternatives in addressing injuries, diseases, and disabilities. It is worth noting in this regard that the impersonal, abstract stereotype of the "litigious plaintiff" masks the racial, gendered, and class features of those claimants, claims, and contexts that it commonly targets. Likewise, the stigma of excessive litigation indirectly undermines legal mobilization strategies by broader rights-based movements ... lacking clout in other political arenas. ...

It follows, finally, that the prevailing forms of media-supported knowledge about hyperlexis deflect attention from issues of collective responsibility and the failures of "democratic" government institutions to address adequately the issues of risk and harm in contemporary life.
pp. 288-89 (emphasis in original)

Bonus: Readers interested in this subject will find lots of good leads in the bibliography.