Free Webcasts from NITA

NITA (the National Institute for Trial Advocacy) offers a free webcast in a couple of weeks: Bad Facts in Your Case? Using theme and theory to tell your story to the factfinder, Jan. 17, 2014, 11 am Mountain (that's 10 am here in Seattle) (NITA is based in Boulder, CO). But wait! There's more! NITA has a couple of dozen Studio71 Webcasts—and many of them are free.
(You can still watch the ones whose dates have passed. You just don't have the live interactive features.)

Free* webcasts include:

• Fundamentals of Cross Examination, Feb. 11, 2014
• Three Critical Tools: Impeachment, Refreshment, and Past Recollection Recorded, Jan. 28, 2014
• Evidentiary Foundations for Social Media Evidence, Dec. 9, 2013
• How to Use Your Trial Skills to Prepare for Mediation, Nov. 19, 2013
• Challenging the Admissibility of Forensic Expert Testimony, Oct. 15, 2013
• Right of Publicity and Privacy, Oct. 2, 2013
• Making and Meeting Objections in Child Welfare Court Proceedings, Aug. 23, 2013
• Demo: Expert Witness Examination, June 19, 2013
• Jury Selection, June 19, 2013
• Direct Examinations in Child Welfare Court, Nov. 8, 2011
• Cross Examination

And there are more!

*There are some fee-based webcasts, too, but the free ones should be especially appealing for student budgets. It's pretty exciting to see the shopping cart icon with "0.00"!

U.S. Chamber Targets "Lawsuit Abuse"

The U.S. Chamber of Commerce is one of the strongest voices decrying what it says is Americans' overreliance on litigation, operating in part through its Institute for Legal Reform (ILR). ILR describes its work:

The U.S. Chamber Institute for Legal Reform (ILR) is the most effective and comprehensive campaign committed to improving the lawsuit climate in America and around the globe.

ILR’s mission is to restore balance, ensure justice, and maintain integrity within the civil legal system. We do this by creating broad awareness of the impact of litigation on society and by championing common sense legal reforms at the state, federal, and global levels.

ILR’s approach is highly aggressive and pragmatic, focused on achieving real change in real time while laying the groundwork for long-term legal reform. ILR’s hallmarks are the execution of cutting-edge strategies and a track record of visible success.

ILR has just released its list of the Top Ten Most Ridiculous Lawsuits of 2013, with a lighthearted YouTube video mocking them.



Of course, the plaintiffs and their attorneys in those suits don't necessarily agree with the Chamber's assessment; a few are quoted in this National Law Journal story.

For a different perspective on civil litigation, see the American Association for Justice's Fighting for Justice pages.

You can also find scholarly assessments of the "litigation explosion," the "malpractice crisis," "tort reform," and so on. Here is a sampling of papers from SSRN:

• Thornburg, Elizabeth G., Judicial Hellholes, Lawsuit Climates, and Bad Social Science: Lessons from West Virginia (2008). West Virginia Law Review, Vol. 110, No. 3, 2008. Available at SSRN: http://ssrn.com/abstract=1123808
• Eisenberg, Theodore, U.S. Chamber of Commerce Liability Survey: Inaccurate, Unfair, and Bad for Business (September 9, 2009). Cornell Legal Studies Research Paper No. 09-029. Available at SSRN: http://ssrn.com/abstract=1470872 
• La Fetra, Deborah, Freedom, Responsibility and Risk: Fundamental Principles Supporting Tort Reform. Indiana Law Review, Vol. 36, p. 645, 2003. Available at SSRN: http://ssrn.com/abstract=699624
• Hyman, David A. and Silver, Charles, Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid. Vanderbilt Law Review, Vol. 59, p. 1085, 2006. Available at SSRN: http://ssrn.com/abstract=942995
• Eisenberg, Theodore, The Empirical Effects of Tort Reform (April 1, 2012). Research Handbook on the Economics of Torts, Forthcoming; Cornell Legal Studies Research Paper No. 12-26. Available at SSRN: http://ssrn.com/abstract=2032740

Crime Stats and Google

An economist has been mining Google search data to learn more about crime, particularly for crimes that are underreported. Seth Stephens-Davidowitz, How Googling Unmasks Child Abuse, N.Y. Times, July 13, 2013.

Stephens-Davidowitz writes that another expert said that child abuse and neglect declined during the recession. Great news, right? But Stephens-Davidowitz found that certain Google searches went up, correlating with areas of high unemployment and decreased social services.

After declining for many years in the United States, the searches that seem to have come from abuse victims themselves rose as soon as the Great Recession began. On weeks that unemployment claims rose, these searches rose as well.

He also found higher rates of child mortality due to abuse—deaths due to abuse are less likely to be unreported than abuse itself.

Seth Stephens-Davidowitz's scholarly paper on this study is Unreported Victims of an Economic Downturn, July 12, 2013.

Witness Testifying Via Skype

Weekend Edition this morning included this:

Witness in Zimmerman Case Testifies by Skype
Two problems arise with the new technology: The witness's testimony in this case was interrupted by pranksters; and appearing via Skype may violate the constitutional right to face your accuser. Weekend Edition Saturday host Scott Simon talks with attorney John Hutchins about using Skype in criminal cases.

Listen here.

Judge Texts Hint to Prosecutor

A judge in Texas thought of a helpful line of questioning for the prosecution and texted a note to another prosecutor, asking her to pass it along to trial counsel. She did, but now regrets it. Judge texted during trial to help state, says ex-prosecutor, ABA Journal News, July 9, 2013.

Calling Home Is Expensive

Most prisons charge inmates such high rates that "a phone call from an inmate across town may be ten times more expensive than ringing a friend in Singapore," says the Legal Times blog. Now the FCC might do something about it. The agency is holding a day-long workshop today.  FCC Tackles Cost of Prison Phone Calls, The BLT: The Blog of the Legal Times, July 10, 2013.

It's a big issue for the quality of life of inmates and their families. It also affects access to counsel (defense counsel get hit with big bills accepting calls from clients). And it affects state budgets: a Virginia legislator who wants to reform prison phone rates acknowledges that the state general fund would miss the millions of dollars it has been making from the high rates. "What do we replace the lost revenue with? That's our problem."

Drug Dogs Going Back to School

Reflecting the change in Washington State law making it legal for adults to possess small amounts of marijuana and use it in private, some law enforcement agencies are retraining their drug-sniffing dogs not to alert for marijuana.

Local stories include:

• Legal pot means big changes for state’s drug-sniffing dogs, KOMOnews.com, March 20, 2013 (video and text)
• Manuel Valdes, Pot on some police dogs' not-to-sniff list, News Tribune (Tacoma), June 3, 2013. (This AP story was picked up by many national and local news organizations.)

The Washington State Criminal Justice Training Commission has standards for certifying dogs with different specialties (patrol, explosives, narcotics). As of January, narcotics dogs will be trained to detect cocaine, crack cocaine, methamphetamine, and heroin, but not marijuana.


The Supreme Court has issued two dog-sniff cases this Term. In Florida v. Harris (Feb. 19, 2013), the Court unanimously upheld the admission of evidence found in a truck after an alert by a trained dog (who had previously been reliable). SCOTUSblog's summary of the case is here. In Florida v. Jardines (March 26, 2013), the Court found that using a drug-sniffing dog on the defendant's front porch was an illegal search. See Adam Liptak, Justices, Citing Ban on Unreasonable Searches, Limit Use of Drug-Sniffing Dogs, N.Y. Times, March 26, 2013.

Narcotics dogs do not always perform accurately. In fact, a study of Chicago-area traffic stops by the Chicago Tribune found that drugs were found in just 44% of the vehicles where dogs alerted—and in only 27% of the vehicles with Hispanic drivers. Dan Hinkel & Joe Mahr, Tribune analysis: Drug-sniffing dogs in traffic stops often wrong, Chi. Tribune, Jan. 6, 2011. An academic study about the same time "found that detection-dog/handler teams erroneously 'alerted,' or identified a scent, when there was no scent present more than 200 times — particularly when the handler believed that there was scent present." Explosive- and drug-sniffing dogs' performance is affected by their handlers' beliefs, UC Davis Health System, Feb. 23, 2011. The paper is: Lisa Lit et al., Handler Beliefs Affect Scent Detection Dog Outcomes, 14 Animal Cognition 387 (2011). 

The current issue of the Oregon Law Review (available free in PDF) is a symposium on drug policy. It includes Jane Bambauer, Defending the Dog, 91 Or. L. Rev. 1203 (2013). The author says "This short essay makes the uneasy case for the narcotics dog. Those in favor of U.S. drug enforcement presumably need no convincing, but this Article intends to address the concerns of skeptics who worry about unjust drug enforcement, or who believe that criminalization is just plain bad policy. Dogs are just the first generation of a new set of law enforcement tools that can help us divorce criminal investigation from the bias and discretion that comes with traditional policing." Id. at 1204.

Washington readers might be particularly interested in Michael Vitiello, Joints or the Joint: Colorado and Washington Square Off Against the United States, 91 Or. L. Rev. 1009 and Michèle Alexandre, First Comes Legalization, Then Comes What? Tips for Washington and Colorado to Help Break the Cycle of Selective Prosecution and Disproportionate Sentencing, 91 Or. L. Rev. 1253.

Graphic: mw

Crazy—Book About Mentally Ill in the Criminal Justice System

Spurred by his son's mental illness and prosecution for breaking into a neighbor's house while he was delusional, journalist Pete Earley spent two years exploring what happens to mentally ill Americans, particularly those who encounter the criminal justice system. The result is a conassionate, revealing, and disturbing book: Crazy: A Father’s Search Through America’s Mental Health Madness (2006).

Since the national movement to deinstitutionalize people with mental illness in the 1980s, many more people with very serious conditions are living on the margins of society, often on the streets. There are inadequate services available to them—community mental health clinics, sheltered living situations, support groups.

All too often they commit crimes related to their illness and land in jail. There are the headline-making crimes (the gruesome murderof a family), but also a thousand petty crimes. For instance, Earley interview and befriends a man who writes "Jesus 2007" on buildings and walls to announce his belief that Jesus is about to return; the man is repeatedly jailed because of his graffiti. At a bus stop, one woman yells at another, "Stop stealing my thoughts!" and shoves her. The second woman isn't hurt and doesn't want to press charges, but the delusional woman is jailed nonetheless.

Earley spent most of his time in Miami, but tells us that the horrible conditions he observed in the Miami-Dade jail's psych floor are not uniquely bad and could be found in many other places. His sustained reporting in one lhttp://www.peteearley.com/blog/ocation adds depth to the book, because he is able to follow several people from jail to hospital and back. He interviews many other participants in the system too: a reforming judge, a jail psychiatrist, parents in a support group, correctional officers, nurses, and more.

You can read the first chapter on Earley's website. Earley's blog provides updates and commentary on mental health issues. By the way, Earley has this "important note" on his website: "The word 'CRAZY' in the book title refers to the mental health care system."

Experiences of the Self-Represented

It's tough enough to handle litigation when you're a lawyer, but it's incredibly stressful and daunting when you don't.

CBC's Day Six has a 15-minute story on self-represented litigants (May 18, 2013). It begins with a moving interview of middle-class Vancouver woman who ran out of money for her lawyer about five months and $50,000 into her case. She's well-spoken and well-educated (master's degree) and was still overwhelmed.

Next the host interviews Julie Macfarlane, a law professor who conducted a study of unrepresented litigants in three provinces (BC, Alberta, Ontario). The report: Julie Macfarlane, The National Self-Represented Litigants Project: Identifying and Meeting the Needs of Self-Represented Litigants: Final Report (May 2013).

I have just scrolled through the report quickly, but it looks very interesting. Canadians and the Canadian court system are similar enough to US folks and the US legal system that the report is very relevant to our access-to-justice issues.

 Julie Macfarlane teaches law at the University of Windsor. Her faculty bio is here .

Lawyers Who Defend Accused Terrorists

What's it like to defend a high-profile terrorism defendant? See: Ron Scherer, Lawyers who defend terror suspects have thankless task. Why do they do it?, Christian Science Monitor, April 30, 2013. Tamar Rebecca Birckhead, To Defend a Terrorist: Reflections on Reid, Tsarnaev & How I Got from There to Here, Juvenile Justice Blog, May 3, 2013. Birckhead, now a professor at the University of North Carolina, represented Richard Reid, the so-called "shoe bomber," when she was a public defender.

Convicting the Innocent

You've heard of people who were shown by DNA evidence to be innocent of the crimes they were imprisoned for. How can that happen? What can we learn from it?

Prof. Brandon Garrett (with the help of a team of research assistants) found out all he could about the first 250 DNA exonerations, gathering trial transcripts (when available), news coverage, appellate records, and the records from state post-conviction proceedings and federal habeas cases. Then he mined the data: How many of the exonerated people had confessed falsely? How many had been mistakenly identified by one or more eyewitnesses? How many were prosecuted with questionable forensic evidence (hair analysis, for instance, does not prove much of anything)? How many years did it take from initial conviction to eventual exoneration?

He presents the results in Convicting the Innocent: Where Criminal Prosecutions Go Wrong (KF9756 .G37 2011 at Classified Stacks). The results are disturbing—but can also be instructive.

Public Interest Law Retreat

Interested in public service law? Sign up for the Trina Grillo Retreat, which will be here March 22-23. Friday evening's events are at the Talaris Conference Center and Saturday's workshops are at UW Law. The retreat provides a unique opportunity for law students, faculty and practitioners to exchange viewpoints, explore career opportunities, and formulate creative strategies for social justice.

There will be great content and a collegial environment, with law students and practitioners from the West Coast.

Attending is cheap! Cost to a UW law student (or a student from another consortium law school)? $0. That's right: it's free! Cost to practitioners? Just $25.

Socrates on Trial—Again

The philosopher Socrates was tried for impiety and corrupting the youth of Athens. He was found guilty and executed in 399 B.C. Next week, he will be tried again—but in Chicago, not Athens.

The Trial of Socrates, organized by the National Hellenic Museum, will feature a lot of legal star power. The presiding judge will be 7th Circuit judge, law professor, and prolific author Richard Posner. You can read or hear an interview with one of the prosecutors, U.S. Attorney Patrick Fitzgerald, here (NPR Weekend Edition, Jan. 26, 2013).

For the history, see The Trial of Socrates, by Prof. Douglas O. Linder. It's just one of many trials for which Linder presents essays, transcripts, images, and more on his Famous Trials site.