State of Washington's Judiciary

Chief Justice Alexander delivered his State of the Judiciary Address to a joint session of the legislature on Wednesday (Jan. 17). In addition to reading the transcript, you can watch and listen to a video of his speech on TVW.

The Chief Justice focused on the Justice in Jeopardy Initiative. Background: In 2002, the Board for Judicial Administration set up a Court Funding Task Force. The task force included lawyers, judges, legislators, and representatives of citizens and professional organizations. Its major report was Justice in Jeopardy: The Court Funding Crisis in Washington State (Dec. 2004). Here's a way our state stands out: at the time of the report, we ranked last among all states in state funding of trial courts, indigent defense, and prosecution. Unlike some well-meaning task forces, this group did not stall out after issuing a report. It's still plugging. See Justice in Jeopardy 2007/2009 Biennium Information & Advocacy Guide.

And so the Chief Justice began by reporting on progress already made in the last two legislative sessions. For instance, state funding of trial courts has improved -- but local governments still pay 80% of the burden. With incremental improvements, he would like the state to pay 50% eventually.

The areas he highlighted for this legislature:

• improved funding of civil legal aid, especially in rural areas.
• progress made in funding trial courts (including a pilot study of increasing the daily fees paid to jurors).
• $8 million to improve interpreter services -- a major access-to-justice issue.
• improving funding for public defense (although progress has been made, we still aren't fulfulling the promise of Gideon, he says).
• increased funding for CASA, a program that trains and places volunteer advocates for abused and neglected children.
• updating court technology -- they're going to upgrade the case management system statewide.

Finally, the Chief Justice remarked that the system of judicial elections is getting attention and there may be bills addressing it. He recommends a publicly funded judicial voters pamphlet. As far as various other proposals, "at this point, the judiciary as a whole has not taken a position in response to any of these specific proposals but I can assure you that we are intensely interested in the subject and we may take a position on all or some of these proposals, provided we can do so without compromising our ethical obligations."

"[T]he provision of justice, on both the criminal and civil side, is a core function of government that should be adequately supported by all taxpayers, not just users of the system." -- Chief Justice Gerry Alexander

Chief Justice Roberts focused his annual report on the need for raises for judges (see earlier post). Chief Justice Alexander asked for funding for public defenders, interpreters, and legal aid. Interesting contrast.

Thanks: Arbitrary & Capricious.

Harder to Seal Records

Continuing its Your Courts, Their Secrets series, the Seattle Times reports that the series has made a difference. No cases have been sealed in King County Superior Court since the series began in March; hundreds of cases formerly sealed have been opened up. "It's a new day" as secrecy fades, Seattle Times, Dec. 31, 2006.

Although the Times was investigating state cases, the local federal court (W.D. Wash.) also tightened its rules, saying lawyers can no longer file pleadings under seal without the permission of a judge.

The article recounts the legal efforts to get cases unsealed, from trying to serve parties who are only vaguely identified to countering motions from those who wanted to keep cases under wraps. Three Davis Wright Tremaine lawyers (Marshall Nelson, Eric Stahl, and Lissa Shook) represented the Times in most of the cases.

An accompanying story discusses the UW's $3.2 million settlement of a medical-malpractice case brought against the UW Medical Center and the manufacturer of an insulin pump. UW finally tells what it paid to settle suit, Seattle Times, Dec. 31, 2006.

Hats off to the reporters who have done such impressive work on this series: Ken Armstrong, Justin Mayo and Steve Miletich.

Judicial Campaign Legislation

Many people raised concerns about campaign funding during the last elections of judges. Legislation may be introduced in the next legislative session (beginning in January). See a survey about the issues: KCBA Board Wants Your Views on Upcoming Judicial Campaign Reform Legislation,

Times Probes Guardianship System

As part of its Your courts, their secrets series, the Seattle Times is now taking a hard look at our state's guardianship system. Yesterday the feature story was about the mismanagement of an elderly woman's affairs by a professional guardian in Spokane, and the frustrations her son had in trying to get access to her court file, which the guardian had had sealed. Maureen O'Hagan, Cheryl Phillips, and Justin Mayo, A son struggles to reveal how lawyer was treating his mother, Seattle Times, Dec. 3, 2006. The Times analyzed the orders sealing files and found that, contrary to the rules, 97% failed to cite compelling circumstances for sealing and 99% failed to weigh the public interest. Thirty-nine percent gave no explanation at all for sealing. Meanwhile, guardians sometimes overcharge and underperform.

A graphic presentation explains How guardianship works -- or doesn't -- and what to watch for.

Today's front-page story looks at the guardianship of a woman who suffered brain damage in a car accident. The lawyer advising the family (the woman's daughter) disclosed that he also represented the guardianship company. At first that seemed to the daughter like an endorsement, but later, when the family was challenging the guardianship company, it looked more like a conflict of interest. Meanwhile, the guardian ad litem who was appointed to review the guardianship had ALSO represented the guardianship company. Cheryl Phillips, Maureen O'Hagan and Justin Mayo, Secrecy hides cozy ties in guardianship cases, Seattle Times, Dec. 4, 2006. After a long struggle -- and over $100,000 in legal fees for the ward -- the ward's sister is now the guardian.

Judge Reprimanded for Telling Defendants of Rights Only in Writing

The Commission on Judicial Conduct has reprimanded municipal judge James Helbling for informing unrepresented criminal defendants of their rights in a written form rather than explaining the rights orally or confirming orally that the defendants understood the form. Bonney Lake judge rebuked, News Tribune, Dec. 4, 2006.

The Stipulation, Agreement and Order of Reprimand is here.

Thanks: Lisa Kremer.

To Split or Not to Split

Engage, a journal from the Federalist Society, has a point-counterpoint about the merits of splitting the Ninth Circuit:

• Diarmuid F. O'Scannlain, Ten Reasons Why the Ninth Circuit Should Be Split, Engage, Oct. 2005, at 58-64 (the whole issue is here in pdf).
  • A speech in which Judge O'Scannlain argued for the split (March 16, 2006) is on the Harvard Federalist Society's website.
• A Court United: A Statement of a Number of Ninth Circuit Judges, Engage, March 2006, at 63-66 (the whole issue is here in pdf; the article itself is on Alex Kozinski's website).
  • The judges signing on were: Chief Judge Mary M. Schroeder and Judges James R. Browning, Alfred T. Goodwin, J. Clifford Wallace, Procter Hug, Jr., Otto R. Skopil, Betty B. Fletcher, Jerome Farris, Harry Pregerson, Warren J. Ferguson, Dorothy W. Nelson, William C. Canby, Jr., Robert Boochever, Stephen Reinhardt, Melvin Brunetti, Alex Kozinski, John T. Noonan, Jr., David R. Thompson, Michael D. Hawkins, A. Wallace Tashima, Sidney R. Thomas, Barry G. Silverman, Susan P. Graber, M. Margaret McKeown, Kim M. Wardlaw, William A. Fletcher, Raymond C. Fisher, Richard A. Paez, Marsha S. Berzon, Johnnie B. Rawlinson, Richard R. Clifton, Consuelo M. Callahan & Carlos T. Bea, all of the Ninth Circuit Court of Appeals.
• Judge O'Scannlain will respond in the next issue of Engage. (It was scheduled to be published "in early fall" but it is not yet posted.)

Wikipedia has a good entry about the Ninth Circuit, including the composition of the court, controversy about its rulings, and the history and current state of splitting proposals.

Reasons to Seal Court Files

Why should courts ever seal files? Doesn't the public have a right to know? In response to the Seattle Times's series, "Your Courts, Their Secrets," Judge Michael J. Trickey last spring wrote an explanation of reasons that files are sealed and explained the court's process. Judge Trickey is the Presiding Judge of the King County Superior Court. Sealing files: not a simple call, March 24, 2006.

Filed in: sealed-records, Trickey

Another Circuit? Two More?

The Ninth Circuit is the largest federal circuit, and proposals have circulated for years to split it. This morning's Seattle Times has an op-ed piece by two people who oppose a split. They're in a position to be affected: they're Robert S. Lasnik, the Chief Judge of the Western District of Washington, and Robert H. Whaley, the Chief Judge of the Eastern District of Washington. Northwest doesn't need its own federal court circuit, Seattle Times, Oct. 13, 2006.

For the other side, see the Times's own editorial, A Pacific Northwest federal appeals court, Oct. 2, 2006. The editorial cites Ninth Circuit Judge Richard Tallman, who reports having to spend an inordinate amount of time traveling in the current, spread-out circuit.

The circuits are not immutable. In my memory (1981), the Eleventh Circuit was carved out of the Fifth Circuit. The previous split was in 1929, when the Tenth Circuit was carved out of the Eighth Circuit. (A convenient place to find the history of federal courts -- when they were established, how many judgeships they have, and so on, is on the Federal Judicial Center's Courts of the Federal Judiciary page.)

Filed in: court-system, judges, Lasnik, Whaley, Tallman, Federal-Judicial-Center

Unsealed DV File Leads Reporters to Cop's Misconduct

The Seattle Times, as part of its investigative series Your Courts, Their Secrets, found that the Snohomish County Superior Court had sealed over 400 domestic violence cases in their entirety. Cop's "incomprehensible" conduct in murder mystery comes to light, Seattle Times, Sept. 13, 2006.

One of the files involved a police officer named John Padilla. When his wife was divorcing him, she found in a box in their bedroom closet an envelope with DNA evidence from a murder investigation years before. The envelope had been sent from a lab to the sheriff's office. Needless to say, a bedroom closet is not the standard place to keep sensitive evidence. The wife called Internal Affairs in the sheriff's department, which investigated. And, it turns out, he was also investigated for other violations of procedure, such as checking out crime-scene videotapes that he never returned and failing to book another tape into evidence. The murder is now a cold case, but if a suspect is found, there will be big "chain of custody" problems with the evidence.

The Times reporters followed this lead to learn of other investigations of Padilla and his being fired for incompetence. He is now employed as a prison guard -- the Dept of Corrections did not learn of his sloppy (or worse) performance when it checked his criminal record and contacted his references. (It did know about the domestic violence allegations but "viewed that as a personal, off-duty issue." Shouldn't we worry about a prison guard whose anger leads him to assault people he loves?)

Here's a twist: the Everett Herald ran a six-part series about the murder investigation. "The series depicted Padilla as a skilled investigator, 'stalking the truth,' applying hunting skills learned from youth, locking suspects with his 'pale blue eyes' to elicit confessions." If we doubt that an individual officer's incompetence should be splashed across the newspaper, doesn't it make a difference when the officer has already been in the paper as an ace detective in the same case?

Filed in: sealed-records, domestic-violence, police

Florida high court to evaluate new proposal banning 'hidden' court cases

Florida high court to evaluate new proposal banning 'hidden' court cases, JURIST - Paper Chase, Sept. 7, 2006.

It looks like the Miami Herald has been doing an investigation similar to the one by the Seattle Times here -- also finding sealed cases involving judges, lawyers, politicians, businesspeople, and police officers.

Filed in: sealed-records

Newsworthy Court Record Sealed

The Seattle Times has another example of a newsworthy court record that was sealed at a party's request. In 1992 Stephanie Dorgan, a lawyer and nightclub owner, was sued by her business partners who alleged that she had not kept proper financial records and did not account for cash receipts. She settled the case in less than a month.

Dorgan's lawyer argued that the file should be sealed because she was an attorney and her reputation would be harmed if the allegations were to become known to others.

That argument didn't meet the legal standard for sealing a court case, but Dorgan benefited from a system in which judges and court commissioners in King County frequently overlooked the rules, often for attorneys, and improperly sealed hundreds of cases.

The Times argues that the allegations should be available, noting that they could have been relevant to the mayor (who appointed Dorgan to a task force about nightclub regulation), to the Liquor Control Board, and to WSBA. A judge unsealed the file on Aug. 5, at the request of the Times.

Of 420 civil suits sealed in King County Superior Court since 1990, judges and commissioners have sealed at least 58 cases where a fellow lawyer is a party, usually as a defendant. Leading firms, prominent lawyers, judges — all have had files about them hidden from public view.

Steve Miletich, Nightclub suit kept under wraps, Sept. 3, 2006. This article is the latest in the series Your Courts, Their Secrets.

Thanks to Mary Hotchkiss.

Filed in: sealed-records, Dorgan, practice-of-law, Hotchkiss

King County District Court Wins Award for Interpreter Web System

The National Association of Court Management (NACM) gave the King County District Court the 2006 Justice Achievement Award in recognition of the King County District Court Interpreter Web (KCIW). Washington Courts press release, Aug. 24, 2006.

This web-based system empowers District Court clerks, court administration staff, and court interpreters to efficiently and conveniently manage scheduling and assignment of interpreter services at all ten District Court locations. This includes civil, criminal, and probation matters, as well as other District Court business requiring an interpreter. A public access feature allows the public to view the system to check whether or not an interpreter is assigned to a case.

The system also handles payments and provide information for budgeting and planning.

Filed in: National-Association-of-Court-Management, King-County, interpreters, court-system

Graphic by mw. (I'm sure the actual trophy or plaque for the Justice Achievement Award looks much better than this!)

Interpreting in Federal Courts

In the last fiscal year, federal court proceedings required interpreters in a total of 111 languages, according to a press release (July 31, 2006) from the Administrative Office for the U.S. Courts.

Spanish is by far the most prevalent language, accounting for 94% of the quarter-million proceedings. (I rounded a little: it was 227,461 events.)

Since 1994, some interpretation for short proceedings (such as pretrial hearings) is handled over the phone, through the Telephone Interpreting Program (TIP). Seven courts provide the service to 80 locations.

Thanks to beSpacific.

Filed in: interpreters, statistics

Courthouse Security

A 310-page manual, Security for Court Interpreters (2006), addresses a wide range of dangers, from assaults to natural disasters. It is aimed at interpreters (it was presented at the conference of the National Association of Judiciary Interpreters and Translators in May), but the explanations of security measures are equally applicable to most people who work in courthouses.

Local note: under the heading "Earthquake Risks Are Real" there are two pictures from the King County Courthouse following the Nisqually Earthquake of 2001 (pp. 261-62). Now I remember why the courthouse needed extensive renovations and seismic retrofitting...

A couple of interesting pieces from the manual's bibliography:

• Anthony J. Sebok, Does a State Have a Duty to Protect a Woman from an Ex-Husband with a Violent History, When They Meet in Court?, Findlaw, June 3, 2002 (discussing a California Supreme Court case that answered "no," under landlord liability theories, and proposing that states take responsibility for courthouse safety, perhaps via a new statute).
• Stephen Kelson, An Increasingly Violent Profession, Utah St. B.J., March 2001. The author surveyed lawyers in Davis County, Utah, to find out the prevalence of threats, assaults, etc. He also presents data about the number of weapons court security collects at entrances.

Filed in: courthouses, security, interpreters, domestic-violence, disasters, earthquakes, King-County

Writing Resources and Writing Samples

After Evan Schaeffer posted A Collection of Free Online Writing Resources, Carolyn Elefant asked for good writing samples, not just more guides. He obliged (The Illinois Trial Practice Weblog: By Popular Demand, a Writing Sample) with copies of the appellate briefs in a case he lost at trial then won on appeal. (The case involved a hospital's liability an employee's sexual abuse of a psychiatric patient and perjury by hospital witnesses.)

Guide

In addition to the writing resources in Evan's post, I suggest our guide, Legal and General Writing Resources.

Books!

Not of the resources listed in our guide are on the web -- but I for one still find books helpful and some of you might find a few worth the investment. (You can also visit a library, of course.) My own shelf above my desk includes Garner's Modern American Usage and The American Heritage Dictionary of the English Language, both of which I consult frequently.

Books are also how I have learned (and continue to learn) about writing -- rules, grammar, style, and tips. I think I was in college the first time I read Strunk and White's The Elements of Style (it's a slender book), and I've reread it several times. When I was admitted to the Eleventh Circuit, the court sent a copy, sending as well the message that the judges would like to see well-written briefs. Over the years, I've read other writing books, sometimes cover to cover and sometimes dabbling. Sometimes I've left one in the bathroom -- better to read a page or two of Safire than spend the time looking over one more mail order catalog.

Perhaps more important that reading books about language has been reading well-written material in other contexts. For instance, I may have read Stephen Jay Gould's books because I was interested in evolution and natural history, but I also read them because I enjoyed his writing style -- and by reading them, I developed my own stylistic taste. Lawyers can develop their feel for good writing not just by studying briefs, but by reading good writers in many fields.

The Green Bag's Recommendations

The Green Bag, which calls itself "an entertaining journal of law," not only publishes good original legal writing in each issue, but it also has launched an annual, The Green Bag Almanac and Reader, reprinting or excerpting what its panel deems to be the best legal writing of the previous year. The 2006 volume (the first) included law review articles, book chapters, cases, briefs, and more. A list of all the nominated pieces is at pp. 6-10 of this pdf. Trial lawyers, see especially Opinions & Orders (pp. 6-7) and Briefs & Motions (p. 8).

Our library has many original briefs and many are available online (see our guide), but I often caution people who want to find a brief to copy that that brief could have been written by the worst lawyer in the state -- or a good lawyer when he or she was having a bad day. Winning isn't the only measure. The Green Bag Almanac includes, for instance, Walter Dellinger's amicus brief in Rumsfeld v. FAIR, even though the side it supported lost 8-0.

Email and Blogs

If you like to get tips day by day, you can subscribe to several email lists. For example, Oxford University Press offers Garner's Usage Tip of the Day (entries from Garner's Modern American Usage) and New Oxford American Dictionary Word of the Day. There are also several blogs by copy editors discussing language and newspapers. See, e.g., A Capital Idea, whose post today links to several other language blogs.

Web Videos

Bryan Garner has interviewed dozens of judges and a few law professors and practicing lawyers about legal writing. Short video clips are available here. I haven't viewed them all, but the ones I've seen have been very interesting. Who better than judges to tell you what judges like -- or hate -- to see in briefs?

Bryan Garner, by the way, is the author of many books on English usage and legal writing, as well as the editor of the latest two editions of Black's Law Dictionary. Through his company, LawProse, Inc., he offers CLEs around the country.

Uh-oh

Finally, for some examples of lawyers getting chewed out for sloppy research and/or bad writing, see Mary Whisner, When Judges Scold Lawyers, 96 Law Libr. J. 169-83 (2005). (This post started with Carolyn's request for good examples, but I can't resist mentioning the other end of the spectrum.)

Filed in: writing, briefs, appeals, tips, Schaeffer, Elefant, Garner, Dellinger, Green-Bag, Rumsfeld-v-FAIR, judges, law-libraries

Two graphics my mw, one lifted from The Green Bag's website.

Federal Civil Practice Bulletin

Interested in federal civil practice? Check out this blog by Prof. A. Benjamin Spencer of the University of Richmond School of Law: Federal Civil Practice Bulletin.

Prof. Spencer also has a blog that watches splits among the federal courts of appeals: Split Circuits. If you're casting about for a paper topic or trying to put together a moot court problem, circuit splits are great.

Filed in: blogs, Federal-Civil-Practice-Bulletin, Split-Circuits, Spencer

DC Cir suppresses reports in Interior / Indian trust case

The DC Circuit granted a motion by the Department of the Interior to suppress reports by a former special master in a decade-old class action alleging that Interior has mismanaged Indian trust funds. Federal court suppresses reports alleging US Interior destroyed Indian trust documents, Jurist - Paper Chase, June 10, 2006.

The case is Cobell v. Norton. In 1999, the district court appointed a special master to oversee the exchange of information between Interior and the plaintiff Native Americans. Along the way, the special master hired a data systems consultant who had formerly worked on a project involving the trust funds for Interior. His company's contract had been canceled and the company had moved to join the class action. Since the consultant worked on the special master's reports, the court finds that the special master's impartiality might reasonably be questioned and suppresses the reports. (The special master resigned in 2004.)

Filed in: cases, special-masters, conflicts-of-interest, Cobell-v-Norton

Idaho Interpreters

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

Filed in: interpreters, Idaho

Image source: my own clowning around with Microsoft Paint.

Punitive Damage Analysis

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

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

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

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

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

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

Graphic by mw.

Origin of the Public Defender

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

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

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

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

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

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