Spoliation of Evidence Can Spoil Litigation

Spoliation of Evidence Can Spoil Litigation, Daily Bus. Rev., July 2, 2007, discusses the cause of action for spoliation of evidence in Florida.

Interesting, I thought, but what about Washington?

I did a quick search in Washington Practice. (The books are at KFW80 in the Reference Area, but I'm in my living room, so I used the WAPRAC database in Westlaw.)

Spoliation of evidence is a relatively new tort which Washington has yet to recognize.

David K. DeWolf & Keller W. Allen, 16A Washington Practice: Tort Law & Practice sec. 21.1.

Later (sec. 21.31) DeWolf and Allen discuss spoliation more. Someone did argue for a cause of action but the court appeals found that the trial court properly refused to give the instruction. Henderson v. Tyrrell, 80 Wash. App. 592, 910 P.2d 522 (1996).

So there you go. But the fact that it hasn't been recognized here yet doesn't mean that it won't be -- it's good to be aware of potential developments. DeWolf and Allen say the cause of action is recognized (in some form) in CA, FL, KS, AK, NJ, IL, and OH. And they refer us to Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's L.J. 351 (1995), for more .

Of course, whether or not there is a tort, spoliation can lead to other problems.

For one thing, if there's spoliation (the willful and improper destruction of evidence), then the opposing party can argue that the evidence would have been damaging to the person who destroyed it. The court may also prevent the party that destroyed evidence from presenting other evidence. Karl B. Tegland, Washington Practice: Evidence sec. 402 (3).

Spoliation can also earn you discovery sanctions. Karl B. Tegland, Washington Practice: Civil Procedure sec. 21.33. Tegland writes:

In Henderson v. Tyrrell, the court was relatively forgiving, but the holding should not lull parties or attorneys into a sense of complacency. The holding simply reaffirms the trial court's broad discretion and does not require trial courts to treat similar cases in a similar manner in the future. To minimize risk, cautious attorneys should continue to advise against the destruction of evidence without first obtaining a court order authorizing such destruction.

Loss of Russell blood vials a shock

Fred Russell is accused of vehicular homicide, based on an accident in 2004. Shortly before he was scheduled to go to trial, he fled the country. The Whitman County prosecutor asked the state crime lab to retain the blood sample. More than once. But the crime lab lost them. Now defense attorney Francisco Duarte (also a Trial Ad instructor) is asking for the suppression of the results of the test, since the sample cannot be retested. Duarte also suggests that dismissing the case would be an appropriate remedy if Russell has been deprived of his right to a fair trial. Loss of Russell blood vials a shock, Spokesman Review, July 23, 2007.

The article explores the possible impact of the missing evidence. And the website has a link to copies of correspondence between the Whitman County Prosecutor's office and the crime lab.

Alleged fighting dogs can't be euthanized

The Spokane County Regional Animal Protective Services (SCRAP) shelter is full and has to euthanize some dogs that potentially could be adopted. Instead, managers would prefer to euthanize 8 dogs that were seized from an alleged dog fighting operation in April. Spokane County Superior Court Judge Ellen Clark ruled today that the shelter must keep the (alleged) fighting dogs alive so that they can be available to the defense, e.g., for behavioral tests. Alleged fighting dogs can't be euthanized, Spokesman Review, July 27, 2007 [that's the date on the web page, but can it be right? isn't today the 26th?]

AG's Hiring of Legal Counsel Opposed

Oklahoma's attorney general, W. A. Drew Edmonson, hired outside counsel with a contingency fee agreement in 2005 to handle a big environmental case against about a dozen poultry processing plants. The U.S. Chamber of Commerce and the American Tort Reform Association have filed an amicus brief, arguing that the government's use of the outside counsel violates the federal and Oklahoma constitutions. AG's Hiring of Legal Counsel Opposed, Nat'l L.J., June 26, 2007.

Trials of Darryl Hunt

This week is your chance to see The Trials of Darryl Hunt, a documentary about a man who was wrongfully convicted and spent twenty years in prison. It's showing July 27 - August 2, Fri - Thurs at 7 & 9:15 PM (plus Sat & Sun at 3 & 5 PM) at the Northwest Film Forum, 1515 12th Ave. at Pike on Capitol Hill, Seattle.

This run is sponsored by the Langston Hughes African American Film Festival, ACLU of Washington, Amnesty International Puget Sound, and The Innocence Project Northwest.

Darryl Hunt's attorney, Mark Rabil, will be there Friday and Saturday. Friday will also have Q&A with Washington state criminal defense attorney Robert Flennaugh II.
Q&A with Washington state trial lawyer Jeff Grant. (Jeff Grant teaches Trial Ad and Pre-Trial Advocacy at the UW.) Panel discussion hosted by Langston Hughes African American Film Festival after 7:00 show on August 2.

I got to see the movie in March 2006, when the Innocence Project Network conference was here at the University of Washington and I thought it was great. (See earlier post.) Go see it if you can.

Watching the U.S. Supreme Court

In yesterday's P-I, Professor Stewart M. Jay looks at Justice Anthony Kennedy as a key player in the Roberts Court. Direction of the Constitution comes down to one justice, Seattle P-I, July 20, 2007 (July 20 on the website, July 21 on the doorstep). (Too bad the web version lacks the neat graphic showing the alignment of the Justices on high-profile cases.)

The opinion page also had Greg Stohr (from Bloomberg News), Business has a very good friend in Justice Alito, Seattle P-I, July 20, 2007.

Perkins Punditry PR

What do you do to distinguish your firm in a crowded legal market like Chicago's? Well, when you're in one of the few firms not involved in civil or criminal litigation relating to Conrad Black, you can make yourself available as a legal commentator, which is what Hugh Totten, a litigator in Perkins Coie's Chicago office did. Black trial a boon for Perkins Coie, Seattle Times, July 22, 2007.

The Confrontation Blog

The Confrontation Blog "is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary." The author is Richard D. Friedman, a professor at the University of Michigan School of Law.

A speaker I heard the other day (I'm at the annual meeting of the American Association of Law Libraries) gave this as an example of a blog focused on a fairly narrow topic. If this is a topic you care about, it could be very valuable. And since it's so focused, it seems to have only a handful of posts per month, so you won't be overwhelmed by a flood of information.

Class Action Waiver Unconscionable, Case Against Cingular Goes Forward

Consumers filed a class action Cingular, alleging overcharges. Pursuant to an arbitration clause, the trial court ordered arbitration. But the arbitration clause included a waiver of class action litigation or class action arbitration, and the plaintiffs argued that that waiver was unconscionable -- and the Washington Supreme Court agreed. The arbitration clause says that if any part is invalidated the whole clause is out, so the case doesn't have to go to arbitration at all. Scott v. Cingular Wireless, No. 77406-4, majority (July 12, 2007) (Chambers, J.).

In dissent, Justice Madsen (joined by Justices J. Johnson and Bridge) says: "If there is to be state policy forbidding class action waivers in consumer agreements, it should come from our legislature, not this court." She is also concerned about the case's disfavoring of arbitration.

This case had a lot of lawyers working on it. For the plaintiffs (petitioners), there were three lawyers from Crane Dunham and two from Trial Lawyers for Public Justice (TLPJ's briefs are here). For the respondents, there were seven -- one from Cingular, one from Microsoft, and five from at least two different law firms.

And then there were the amici:

• Washington State Trial Lawyers Association Foundation (brief here)
• Attorney General of Washington (brief here)
• Association of Washington Business
• Chamber of Commerce (both local counsel and two from the Nat'l Chamber Litigation Center in DC) (brief here)
• The Wireless Association Ctia
• 
  
• AARP (again, both local and from DC) (brief here)
• National Association of Consumer Advocates (one of the two listed counsel is with the AARP Foundation)
• Intel Corporation
• Amazon.com , Inc.
• Realnetworks , Inc.
• Microsoft Corporation

Here's commentary on the case from a Seattle Times reporter: State Supreme Court backs class-action suits, Postman on Poltics, July 12, 2007.

Here's a summary of a similar case in Illinois (Kinkel v. Cingular Wireless LLC): Illinois Supreme Court Holds Class Action Waiver Unconscionable, Consumer Law & Policy Blog, Oct. 17, 2006.

Excited Utterance Case

The Washington Supreme Court upheld the admission of a hearsay statement by an 11-year-old girl in an attempted molestation case as an excited utterance in State v. Young, No. 76533-2, Washington Courts website (July 12, 2007).

Justice Fairhurst summarized:

In a pretrial hearing, the trial court determined that hearsay statements were admissible as excited utterances even though the declarant later recanted the statements, the circumstances surrounding the statements provided the only corroboration that a startling event occurred, and minor discrepancies existed in the witnesses' testimony about the content of the statements. We hold that the trial court did not abuse its discretion by admitting the hearsay statements as excited utterances and affirm the Court of Appeals.

What caught my eye in the list of new opinions was that there were several: majority (Fairhurst, J., joined by C. Johnson, Bridge, Chambers, and Owens), concurrence (Alexander, C.J.), concurrence (Madsen, J.), and dissent (Sanders, J., joined by J. Johnson, J.). A split like that, with so many justices taking the time to write separately, is a sign that the case is not straightforward. And hence it's worth a close look for those trying to stay on top of the Evidence Rules and think about how to apply (or distinguish) precedent.

UK Civil Judges and Lawyers Lose Wigs!

In England and Wales, the Lord Chief Justice has announced that civil judges will no longer wear wigs, and their gowns will be in a new, simpler design. Advocates will also stop wearing "wigs, wing collars and bands." U.K. Civil Judges End Tradition Of White Wigs, AHN, July 15, 2007.

The Judiciary of England and Wales press release is here.

For the history of the wig thing, see Charles M. Yablon, Wigs, Coifs, and Other Idiosyncracies of English Judicial Attire, Cardozo Life, Spring 1999.

Thanks: Maureen Howard.

Photo of current dress for high court judge from Court Working Dress in England and Wales (A Lord Chancellor's Department Consultation Paper) Annex D, May 2003.

Yakima Valley farmworkers win $1.8 million in lawsuit | Seattle Times Newspaper

Yakima Valley farmworkers win $1.8 million in lawsuit, Seattle Times, July 14, 2007.

Two Eastern Washington fruit growers and the labor contractor they used to bring legal Thai workers to their farms three years ago have been ordered to pay $1.8 million to some 600 Yakima Valley farmworkers — some of them illegal immigrants — who claim they were displaced.

A federal judge this week found Los Angeles-based Global Horizons, and growers Valley Fruit Orchards of Wapato and Green Acre Farms of Harrah, both in Yakima County, in violation of state and federal labor laws, including willfully withholding wages and failing to provide information in Spanish about available jobs.

The ruling entitles each farmworker to damages ranging from $2,000 to $4,000.

The plaintiffs are represented by Lori Jordan Isley and Mirta Laura Contreras of Columbia Legal Services in Yakima, Joe Morrison of Columbia Legal Services in Wenatchee and Richard W. Kuhling of Paine, Hamblen, Coffin, Brooke and Miller, LLP, a Spokane law firm.

Not all of the plaintiffs' claims are resolved by the court order. Trial is scheduled for September 10.

Laura Contreras is profiled on WSBA's Diversity and Leadership page.

Thanks: Michele Storms.

Portland's Handling of Rape Cases

The Portland, OR, City Auditor released a report finding serious problems with the handling of rape cases by dispatchers (who, for instance, don't tell victims about preserving evidence), hospitals, and the police. Portland's unenlightened handling of rape cases is exposed, Crosscut, June 20, 2007.

8 men allege abuse in suit against SU, Jesuit order | Seattle Times Newspaper

8 men allege abuse in suit against SU, Jesuit order, Seattle Times, July 12, 2007; Seattle U sued in abuse allegations, Seattle P-I, July 12, 2007.

The men allege abuse by a Jesuit priest (Rev. Michael Toulouse) between the early 1950s and 1976, when he died. They seek to hold SU and the Society of Jesus, Oregon Province, responsible, because the institutions may have known about Toulouse's abuse of boys and did nothing to stop it.

The plaintiffs were not SU students at the time of the abuse, but they say that "Toulouse exploited his status as a priest and an SU faculty member to get to know local Catholic families and groom some of their sons." Times story.

Presidential Scholars Oppose Rendition & Torture

A story about high school Presidential Scholars who handed President Bush a letter urging him to cease illegal renditions . . . not "trial advocacy," but very powerful advocacy from young advocates: AlterNet: Young Scholars Tell the President 'No' on Torture, July 11, 2007.

DOJ Atty Criticizes DOJ - Denver Post Op Ed

John S. Koppel, who has been an attorney in the Justice Department since 1981, published a strongly worded opinion piece about the department in today's Denver Post:

As a longtime attorney at the U.S. Department of Justice, I can honestly say that I have never been as ashamed of the department and government that I serve as I am at this time.

The public record now plainly demonstrates that both the DOJ and the government as a whole have been thoroughly politicized in a manner that is inappropriate, unethical and indeed unlawful. The unconscionable commutation of I. Lewis 'Scooter' Libby's sentence, the misuse of warrantless investigative powers under the Patriot Act and the deplorable treatment of U.S. attorneys all point to an unmistakable pattern of abuse.

John S. Koppel, Bush justice is a national disgrace, Denver Post, July 9, 2007.

New W.D. Wash. Judge

On June 29, the Senate confirmed Benjamin H. Settle to serve as a district court judge for the Western District of Washington. He will have chambers in Tacoma, filling the vacancy created when Judge Franklin D. Burgess assumed senior status.

The Senate vote was 99-0. Who says politicians can't ever agree on anything?

A graduate of Willamette law school, Judge Settle was a founding partner of Settle & Johnson in Shelton. The firm has two attorneys (until Settle's departure) and at its largest only had three.

That background makes me think about the demographics of federal judges. Off the top of my head, it seems that many come from state court judgeships, big-firm, big-city practice, or large government organizations. I'm guessing that Judge Settle's background -- very small firm in a small city -- is unusual.

And yet solo and small firm practice is not at all unusual for attorneys. In 2000, 48% of U.S. attorneys were in solo practice, 15% were in firms of 2-5 lawyers, and 7% were in firms of 6-10 lawyers. ABA Lawyer Demographics fact sheet (2006).

... Oh, heck, I can't resist. I'll go to the Federal Judicial Center's Federal Judges Biographical Database.

My search: all sitting judges in the Western District of Washington. Here are their last jobs before the federal bench:

• private practice
• Seattle (Bryan, Coughenour, Robart, Zilly)


• Tacoma (Leighton)


• Yakima (McDonald)


• Spokane (Nielsen, Quackenbush)


• Shelton (Settle)(city wasn't listed, but we knew it already)


• no location named (Shea)


• U.S. magistrate (Burgess (earlier: HUD), Suko (earlier: private practice, Yakima))


• Wash. Supreme Court justice (Dimmick, McGovern)


• superior court judge (Lasnik, Martinez, Pechman, Rothstein, Sickle, Whaley). Their jobs before superior court:
• prosecutor's office (Lasnik, Martinez - both King County)
• private practice (Pechman (Sea.), Sickle, Whaley (Spo.))
• Wash. AG's office (Rothstein)

This confirms that state judgeships are common feeder jobs -- and also the position of U.S. Magistrate, which I hadn't thought of. An equal number of the district judges came from private practice as from judicial or magistrate positions (10 and 10).

I can't tell from the database entries the size of firm or type of practice for the ones who had been in private practice. I'm still guessing that a two-person firm is not the norm. Further investigation is for another day -- or another researcher!

The Second Justice Jones

Idaho now has two Justice Joneses (see Ridenbaugh Press » The second Justice Jones, June 26, 2007), to match Washington's two Justice Johnsons. Minnesota's Supreme Court has three Justice Andersons. We could have passed that mark if the Johnsons in our primary last fall were successful -- but I think it's fine that they weren't.

If courts were poker hands, three of a kind would be pretty good. Is there any state with more than three of a kind? How about a full house?

I'm just being silly joking about names -- but there might be a serious point to make if the common names turn out to reflect ethnic homogeneity (the Andersons and Johnsons are all white men, possibly of Scandinavian descent. The current Justice Jones is also a white man, but I haven't found a picture of the new Justice Jones, Warren Jones). How many flushes are there?

R Rated?!?

Mingle2, an online dating site, has a little application that rates blogs like movies. I plugged in this blog's URL and got rated ...



Why? "This rating was determined based on the presence of the following words: torture (5x), punch (2x), sex (1x)."

Well, I can't say I'm surprised. Although it's never been my intention to have a salacious blog -- or even a mildy racy one -- I've always been aware that I use some hot-button words. When I go through a phase of reading a lot of cases, the "R" words increase, since -- like it or not -- many of the cases addressing trial procedure and evidence have to do with people who are accused of crimes such as rape and child sexual abuse.

At least the folks who search the Web for torture and abuse as turn-ons won't find anything particularly hot here, unless they are fetishists for court rules or empirical studies of juror behavior.

Problems in Idaho's Outsourced Prisons

The suicide in March of an Idaho prisoner being held in a privately-run prison in Texas has focused attention on the practice of outsourcing. Suicide shows squalid conditions in privately run Texas prison, Seattle P-I (AP), July 6, 2007.

Idaho's prison authorities seldom sent inspectors to out-of-state facilities and relied on telephone and e-mail to handle grievances.

Washington also has some inmates in prisons out of state, but stations full-time inspectors at the prisons and sends a superinendent every six weeks.


The private prison in Texas is run by the GEO Group, Inc., which "operates facilities in the United States, Canada, South Africa, Australia, and soon, in the United Kingdom."

Thanks: Ridenbaugh Press (whose blog I encountered for the first time today but intend to keep an eye on).

Photo: Dickens County Correctional Center (Spur, TX) from GEO Group website.

Wash. Supreme Court Clarifies Default Judgment Rules

If you file a lawsuit and serve the defendant, and then the defendant does nothing, you're entitled to a default judgment. But sometimes the defendant can have the default judgment set aside. (Want to read the rules? See CR 55 and CR 60.) The courts have set aside default judgments liberally, because they favor resolving cases on their merits.

The Washington Supreme Court recently addressed just how liberally to grant relief from default judgments, reviewing three cases consolidated in Morin v. Burris, majority, concurrence/dissent (June 28, 2007).

The court found that two of the defendants had failed to meet their burden to justify setting aside the default judgments, because their actions in defending the cases were before the cases were filed. In a third case, the court found that the defendant had been misled by plaintiff's counsel; the court remanded for a finding whether the defendant had made a sufficient appearance to justify setting aside the default judgment.

We favor resolution of disputes on the merits. We will liberally apply the civil rules and equitable principles to vacate default judgments where fairness and justice requires. However, when served with a summons and complaint, a party must appear. There must be some potential cost to encourage parties to acknowledge the court’s jurisdiction. Substantial compliance will satisfy the notice of appearance requirement. We do not exalt form over substance and appearance may be accomplished informally. However, we reject the argument that prelitigation communications alone may satisfy the appearance requirements of CR 4 and CR 55, and we decline to adopted the doctrine of informal appearance as formulated by the courts
below.

Slip op. at 17 (Chambers, J.)

Justice Bridge (joined by Chief Justice Alexander and Justice Madsen) concurred in part and dissented in part. She agreed with the majority's result in two of the three cases but disagreed with its reasoning. In the third case, she would remand for a trial on the merits.

I would hold that a party in Washington may informally appear such that notice to that party is required before a default order or judgment is sought against it. Informal appearance is a matter of intent, but such intent must be manifested after an action is commenced.

Dissent slip op. at 7.

Photo of Justice Chambers from Washington Courts website.

Defense Motions in Vehic. Homicide Case

Frederick D. Russell, accused of vehicular homicide in a 2001 crash, is scheduled to be tried in Whitman County (the county that includes Pullman) in October. In pretrial motions, his attorney, Franciso Duarte argues that the state violated his rights in destroying blood samples (his blood alcohol tested at .12 percent after the accident) and obtaining his medical records. He also argues for a change of venue because there has been so much publicity about the case in Eastern Washington. Russell alleges state evidence was destroyed, Spokesman Review, June 26, 2007. The trial is so long after the incident because the defendant left the country before his first scheduled trial. He was extradited from Ireland in November (see earlier post).

Duarte, who practices in Bellevue, is a Trial Ad instructor.

Clemency and Pardon in Washington

Of course the President's commutation of Scooter Libby's sentence is getting a lot of attention -- but what about clemency and pardon here in Washington? The Seattle Weekly has a long article on it: Gov. Gregoire: One Tough Clemency Judge, Seattle Weekly, July 4, 2007.

The story leads with Barry Massey, who has served 20 years of a life sentence for a murder he participated in when he was 13. Four out of five members of the Clemency and Pardons Board recommended that he be granted clemency if his prison record remains good for five more years. (The fifth was persuaded that clemency was inappropriate because of the victim's family's statements.) Gov. Gregoire decided not to grant clemency, at least at this time (he can apply again in three years).

The article compares Gov. Gregoire's record with those of Governors Locke and Lowry. She has rejected the board's recommendations more than they did -- but she has also granted more petitions in her first two years in office than Gov. Locke did in his.

The governor's power to pardon comes from the state constitution (Art. III, sec. 9):

The pardoning power shall be vested in the governor under such regulations and restrictions as may be prescribed by law.

The Clemency and Pardons Board was established to advise the governor in 1981 (as part of the Sentencing Reform Act); its statutory provisions are RCW 9.94A.880 and 9.94A.885.

Cross-Examination: Science and Techniques

Cross-Examination: Science and Techniques offers practical advice to trial attorneys. According to the publisher's description:

the authors:

• Demonstrate how opponents' objections can be the springboard for deeper and broader cross-examinations.


• Show how cross-examination can be sequenced to teach the theory of the case in the best way, and to literally expand the rules of admissibility.


• Explain how "loops" (the practice of incorporating and repeating key phrases and terms in successive questions to the witness) are used to rename witnesses and exhibits.


• Describe the use of "double loops" to discredit opposing expert witnesses.

Effective cross-examination is a science with established guidelines, identifiable techniques, and definable methods. Attorneys can learn how to control the outcome with careful preparation, calculated strategy, effective skills, and a disciplined demeanor.

It's in the library: KF8920 .P68 2004 at Reference Area.

The authors also have their own website, PoznerandDodd.com.

Public Service Voices

The Gates Public Service Law Scholarship Program is about more than just the scholarships. It also provides opportunities for the whole law school community to engage in discussions about public service.

The newest service Public Service Voices, a column presenting perspectives from different practitioners. The first is The Gratitude-Driven Practice, by Jason Vail, an attorney with Northwest Justice Project.

My hope is that my fellow attorneys will join me in choosing to practice law out of a sense of gratitude instead of entitlement. This does not require wholesale career changes; I am not suggesting one must become a full-time public interest attorney in order to accomplish this goal. The approach is far simpler, requiring only that we all recognize that as attorneys we have extremely valuable problem-solving capabilities that are desperately needed every day by many who cannot obtain them.

Bush Commutes Libby's Sentence

Using his power of executive clemency, President Bush today commuted Lewis "Scooter" Libby's sentence. He will not have to serve his prison term, but he will still face probation and a $250,000 fine. Here is Bush's proclamation.

Washington Post coverage:

• Bush Commutes Libby's Prison Sentence
• A Decision Made Largely Alone, July 3, 2007.

For scholarship, news, and more, see Jurist's Presidential Pardons page. Clemency statistics 1789-2001 are here.

An Empirical Study Of The Value of Impeaching With Prior Inconsistent Statements

Two jury consultants and an attorney provide a long summary of their findings from a study of mock jurors: An Empirical Study Of The Value of Impeaching With Prior Inconsistent Statements, Drug and Device Law, May 15, 2007. My summary of the summary:

• Jurors go into civil trials expecting witnesses to tell the truth (72% believe witnesses will be as honest as possible).
• Most (60%) jurors believe that a witness making a statement that's inconsistent with earlier statements is lying, rather than making an honest mistake.
• Few jurors said that an inconsistency would make them disregard everything the witness said. They look to behavioral clues.
• Jurors will cut a witness slack if told that the inconsistency could be the result of the stress of being in the courtroom.

A longer article is in the April 2007 issue of For the Defense.

Plurality Opinions

The lead opinion in today's school desegregation cases only got four votes. Since a fifth justice agreed in the result -- invalidation of the school district's plans -- but not the reasoning, that lead opinion is a "plurality opinion," and everyone who wants to figure out where the law stands has a lot of sorting out to do.

This seemed like a good occasion to read up a little on plurality opinions and (why not?) share with you.

• Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419 (1992). Criticizes the rule in Marks v. United States, 430 U.S. 188 (1977), which says to take as precedent the narrowest grounds that would justify the result the majority agreed on. Argues for a hybrid approach.





• Note, Plurality Decisions and Judicial Decisionmaking, 94 Harv. L. Rev. 1127 (1981). Argues that the increase in plurality decisions beginning during the Warren Court is attributable to "substantive reasoning" -- reasoning from substantive values, in contrast to legal formalism. Suggests instead use of process-based arguments.



• Adam S. Hochschild, Note, The Modern Problem of Supreme Court Plurality Decision: Interpretation in Historical Perspective, 4 Wash. U.J.L. & Pol'y 261 (2000). Traces the history of Supreme Court decisions from the Jay Court, when justices each delivered an opinion one after the other ("seriatim"). Argues that the Court should go back to its role before Chief Justice Marshall, who began the practice of consolidating opinions and delivering one for the court. (Somehow I don't think it likely the Court would turn the clock back that far.)



• I returned to a speech Justice Ginsburg gave at the UW when she was a circuit judge: Ruth Bader Ginsburg, Remarks on Writing Separately, 65 Wash. L. Rev. 133 (1990). Positions the U.S. practice (most appellate decisions are unanimous but judges often write separately) between the British practice (decisions delivered seriatim -- except in criminal appeals) and the European civil law practice (unanimous decisions with little emphasis on the identity of the judge). Interesting discussions of reasons to write separately and to refrain from writing separately even when one disagrees with the majority.



• Am.Jur. 2d spends a lot less ink on the question:

  If a majority of the court agreed on a decision in the case, but less than a majority could agree on the reasoning for that decision, the decision has no stare decisis effect.[FN5] A plurality opinion is said not to be a binding precedent,[FN6] or, by a related view, to be nonbinding, but of limited precedential value as to the holding but not as to the rationale.[FN7]

  20 Am.Jur. 2d Courts sec. 138

Clear answers? I'm afraid not. But perhaps these references will be helpful.



Photo from Supreme Court website.

Supreme Court Decides School Cases

The Supreme Court today handed down its decision in two school desegregation cases -- from Louisville, KY, and Seattle -- involving the assignment of students to public schools. In both districts, race was one factor, after other factors, such as parental choice and neighborhood. (Seattle's plan, which used race as a tiebreaker, was no longer in use.) The Court struck down both plans, 5-4. Four justices -- Chief Justice Roberts and Justices Alito, Thomas, and Scalia -- would never allow schools to consider race. Justice Kennedy would sometimes allow it, just not as these two school districts handled it, in the cases of individual children. Justice Breyer (joined by Justices Ginsburg, Stevens, and Souter) and Justice Souter dissented.

Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, slip opinion pdf (June 28, 2007).

Statements and coverage:

• Seattle Public Schools
• Equal Justice Society
• NAACP
• New York Times
• Seattle P-I
• Seattle Times

Gonzales in Seattle

Attorney General Alberto Gonzales was in Seattle today. Attorney general visits Seattle, meets with family of slain federal prosecutor Wales, Seattle Times (web), June 27, 2007

In the morning he spoke to an invitation-only gathering of technology executives, assuring them of the Justice Department's commitment to protecting intellectual property and fighting cybercrime. His prepared remarks are here.

Later he met with the family of Thomas Wales, an assistant U.S. attorney who was murdered in his home in 2001.

"Tom Wales is remembered as an outstanding prosecutor and a beloved member of the Seattle U.S. Attorney's Office and the Department of Justice," Gonzales said. "Bringing those involved in his killing to justice is of the utmost importance to the department."

Seattle Times.

The Wales case is currently before a federal grand jury. Wife of suspect in Wales case called to testify, Seattle Times, June 8, 2007.

Gonzales did not speak about the U.S. attorney firing controversy. But I note that one speculation was that the Administration was unhappy with John McKay because he was asking for more resources to prosecute the case. McKay made firing list in March '05; was Wales killing a factor?, Seattle Times, May 3, 2007. Last month Gonzales told the House Judiciary Committee

he didn't know if McKay might have been fired because he pushed for resources to investigate the October 2001 slaying of Assistant U.S. Attorney Thomas Wales.

Gonzales fends off hostile Democrats, Seattle Times, May 11, 2007.

For more about Wales, see this profile on the Thomas C. Wales Foundation website.

Photo of Gonzales from U.S. Dep't of Justice.

Police chief: No regrets, but I'm open to change

The next story about Chief Kerlikowske and review of questionable officer conduct within the Seattle Police Department: Police chief: No regrets, but I'm open to change, Seattle Times, June 27, 2007.

Police chief exonerated officers in violent arrest

More on Seattle Police Chief Gil Kerlikowske's role in disciplinary investigations: Police chief exonerated officers in violent arrest, Seattle Times, June 26, 2007.

Prosecutor's deputy asks lawyers to endorse boss

Prosecutor's deputy asks lawyers to endorse boss, Seattle P-I, June 25, 2007.

Dan Satterberg, the acting King County prosecuting attorney, has promised to keep his office out of politics by explicitly barring his 250-lawyer staff from contributing money or endorsements to his election campaign.

But that, in his lawyerly interpretation, doesn't prevent one of his top deputies from aggressively seeking political endorsements for Satterberg from a long list of the county's most prominent lawyers and law firms. They include many who do work -- some in the millions of dollars -- for the prosecutor's office.

New Dwyer Book

Ipse Dixit: How the World Looks to a Federal Judge presents speeches by the late Judge William L. Dwyer. He gathered the speeches before he died for his grandchildren, and his widow, Vasiliki Dwyer, thought the manuscript should be published. Professor Emeritus Meade Emory worked to get it in shape, checking quotations, adding endnotes, and writing an introduction.

Reviewing the book, Kevin J. Hamilton concluded, "Inspiring, thoughtful and beautiful, this collection of essays is a gem." Judge Dwyer's speeches bring legend to life, Seattle Times, June 22, 2007.

An all-star panel (Frederic C. Tausend (moderator), Hon. Robert S. Lasnik, Hon. Betty B. Fletcher, Arthur Harrigan, Prof. Stewart Jay, Prof. William Rodgers, Judith Ramseyer. Intro by Meade Emory) will discuss the book and Dwyer on June 27 at Town Hall (admission $5).

The book is not yet available in the law library -- it's just now being released -- but you can bet it will be!

Don't overlook Dwyer's other books: In the Hands of the People: The Trial Jury's Origins, Triumphs, Troubles, and Future in American Democracy (KF9680 .D89 2002 at Good Reads) and The Goldmark Case: An American Libel Trial (KF228.G65 D85 1984 at Classified Stacks and Good Reads).

Prosecutors' Brady Bunch

King county prosecutors have started a list of Seattle police officers and King County deputies whose records include something that might affect their credibility. Prosecutors keep list of problem officers, Seattle Times, June 24, 2007.

Brady v. Maryland, 373 U.S. 83, Justia (1963), requires prosecutors to provide potentially exculpatory information to the defense.

The prosecutors also want to know about potential problems in their cases so they won't be blindsided at trial. Sometimes they have learned of an investigation or discipline of an officer only when the defense uses it in cross.

The prosecutor's office is trying to get information from law enforcement in a more systematic way.

This issue is in the public eye because of the controversy of the officers' whose account of a drug bust was inconsistent with their actions captured by a security camera -- and the criticisms of the Police Chief's actions during the subsequent investigation. See earlier post.

Book: The Jury Process

The Jury Process, by Nancy S. Marder

gives a complete overview of America's jury system. It has three instructional goals: to show where the jury stands in America's rich legal history, to explain the defining features of today's jury, and to identify aspects of the jury where improvements can and should be made. It can be used as a primary textbook for a course, or as a supplement in any law school course that includes a unit on the jury.

--publisher's description. It's available in the library: KF8972 .M37 2005 at Reference Area.

In addition to this student text, Prof. Marder has written many law review articles on juries, most recently on cyberjuries.

Photo from Prof. Marder's profile at Chicago-Kent College of Law.

Judge Walton's Footnote

Granting permission for a group of professors to file an amicus brief in the Scooter Libby case, Judge Reggie Walton dropped a footnote:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in the Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

Judge Walton's Footnote, The Volokh Conspiracy, June 10, 2007.

The author of the blog post thinks the "snark" isn't justified, and many commenters weighed in, expressing a range of opinion.

I include the footnote here because, well, it amused me, and I at first didn't even think about judicial decorum, fairness to the professors, and so on. At the least, the footnote is a salutary reminder that many people lack the counsel they need.

Citing Unpub. Opinions in Wash.

This month the Washington Supreme Court adopted a new General Rule on citing formal opinions. Parties will still be unable to cite unpublished opinions by the Washington Court of Appeals but, effective Sept. 1, will be able to cite unpublished opinions from other jurisdictions if they could be cited under their own jurisdiction's rules. GR 14.1.

The current rule is stated in RAP 10.4(h), but it only address opinions from the Washington Court of Appeals, not other jurisdictions. And since the rule is in the Rules on Appeal, it didn't obviously apply to citations to trial courts (although I always assumed that it did). After Sept. 1, RAP 10.4 will reference GR 14.1.

For a summary of the Ninth Circuit's rule on citing unpublished opinions, see earlier post.

Scathing report says chief interfered with cop probe | Seattle Times Newspaper

The Seattle Times ran this as a front-page story this morning: Scathing report says chief interfered with cop probe, Seattle Times, June 19, 2007.

The report is a draft from the civilian Office of Professional Accountability, available on the Times's website. It discusses the handling of the investigation of the two officers whose credibility was called into question after their account of a drug arrest conflicted with what was captured on a surveillance camera. See earlier posts.

D.A. in Duke Lacrosse Case Disbarred; Side Note About Washington

A disciplinary panel from the North Carolina State Bar disbarred Mike Nifong, the Durham County prosecutor who so recklessly pursued charges against three Duke athletes who were later exonerated. Law Panel Disbars D.A. in Duke Lacrosse Case, NPR, June 16, 2007. (In that sentence, I originally thought "zealously," in the ordinary sense of the word -- but lawyers are supposed to be "zealous," just not zealous to the point of "dishonesty, fraud, deceit and misrepresentation.")

One story I heard commented that NC State Bar has traditionally not been tough prosecutorial misconduct.

That led me to wonder: what about the Washington State Bar?

WSBA's discliplinary notices are online and searchable. I searched for "prosecutor" and got 32 hits, from 1997 to date. Most of these are "false drops" -- that is, they have the word, but they aren't about prosecutors (the first one I read was about a defense attorney who failed to contact the prosecutor). Ones involving prosecutors:

• Lawyer on inactive status was hired by prosecutor's office and asked WSBA to change his status. He began practicing before getting his CLE credits squared away. Censured, RPC 5.5, unauthorized practice of law.
• A Thurston County prosecutor told a witness that he could "work something out" (re the witness's own prosecution) if the witness did not testify on behalf of another defendant. Disbarred, 3.4 - Fairness to Opposing Party and Counsel;
  8.4 (b) - Criminal Act; 8.4 (d) - Conduct Prejudicial to the Administration of Justice.
• A prosecutor was suspended for failure to present potentially exculpatory evidence to the defense. 3.4 - Fairness to Opposing Party and Counsel; 3.8 - Special Responsibilities of a Prosecutor.
• A prosecutor was admonished for failure to comply with a court-ordered discovery order. 3.4 - Fairness to Opposing Party and Counsel; 8.4 (c) - Dishonesty, Fraud, Deceit or Misrepresentation.

Why comparatively few disciplinary actions with prosecutors? One possible factor: no clients (many disciplinary complaints involve failure to communicate with clients or mishandling client funds).

ATJ Conference Report

Michele Storms, the Executive Director of the UW's William H. Gates Public Service Law Scholarship Program, offers this report from the Washington State Access to Justice Conference held earlier this month:

Valuing Leadership: Ensuring Justice for All was the theme of this year's 12th annual Washington State Access to Justice Conference, held June 1-3 in Wenatchee.

A joint effort of the Access to Justice Board and the WSBA Bar Leaders Division, the conferences began as a way for the legal community to come together to support the delivery of civil legal aid in this state. Through the recommendations for the conference each year, new initiatives have been developed to enable advocates to deliver better services to low income people in their serious legal cases. An example is the work community leaders have accomplished to develop a "state plan" for delivery of legal services. The most recent state plan focuses much-needed attention on the underserved needs of the low income individuals residing in the rural communities across the state.

The conference keynote speaker this year was John McKay who spoke honestly about his experiences as the US Attorney for the Western District of Washington. He spoke of the meaning of the rule of law and why we must all strive as lawyers to ensure that justice trumps politics.

The conference has always been attended by lawyers, judges, mediators, court staff, social workers and more. But this year a noteworthy aspect of the conference was the strong participation of law students. There were 22 law students present this year; their presence was jointly funded by the three law school deans in this state and by the Legal Foundation of Washington. Brenda Tausch (UW JD '07) stated, "My experience at the ATJ not only provided me with meaningful information about exciting new legal initiatives, but also indispensable contacts with leaders in the field and with fellow law students who will form the next generation of leaders."

Deliberations: "Do Juries Deliberate?" A Survey In Seattle

Anne Reed summarizes (and links to) a study of jury behavior from the Jury and Democracy Project: "Do Juries Deliberate?" A Survey In Seattle, Deliberations, May 29, 2007.

The study is interesting in itself, of course. But I was also interested to learn of the project, which includes investigators here at the University of Washington, in the Dept. of Communication.

Links to previous papers from the project are here. The project has a semiannual email newsletter to alert readers to new content on the website.

2 Attys Sue Avvo Over Ratings

Business & Technology | Attorneys sue site that comes up with ratings on ... lawyers | Seattle Times Newspaper, June 15, 2007.

The plaintiffs are John Henry Browne and Alan Wenokur; they are represented by Steve Berman of Hagens Berman Sobol Shapiro. The case was filed in W.D. Wash.

See earlier post on Avvo.

Wash. Courts and ADA

The Washington State Supreme Court has adopted GR 33 addressing the courts' obligations under the Americans With Disabilities Act. The rule becomes effective on September 1, 2007.

The Rule itself follows from the 2003 case of Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978, Findlaw (2004), in which the U.S. Supreme Court ruled that title II of the ADA applies to state courts, which are thus required toreasonably accommodate persons with disabilities. GR 33 sets up a process by which persons who may be in need of accommodations under the ADA or Washington Law Against Discrimination can make their needs formally known to the court and the court can determine how best to
accommodate them.

Section 1(c) of the rule expressly recognizes representation by counsel as a reasonable accommodation to make the courts accessible for qualified disabled persons.

The Supreme Court's adoption of the Rule and its express recognition of representation by counsel as an accommodation represents a tremendous improvement in access to justice for the disabled and is the result of tremendous effort by Washington State's Access to Justice Board's Impediments to Access to Justice Committee.

This information is from Deborah Perluss (Northwest Justice Project), via Michele Storms.

Justice Dept. Reshapes Its Civil Rights Mission - New York Times

Justice Dept. Reshapes Its Civil Rights Mission, N.Y. Times, June 14, 2007:

In recent years, the Bush administration has recast the federal government’s role in civil rights by aggressively pursuing religion-oriented cases while significantly diminishing its involvement in the traditional area of race.

Prosecutions of hate crimes and voting rights violations are down, protection of the rights of religious groups is more robust. Political appointees have affected the hiring of new lawyers, with an increase in graduates from religiously-based law schools (e.g., Ave Maria, Regent, BYU).

Maureen Howard alerted me to this long, interesting article.

The Proceedings of the Old Bailey, London 1674 to 1834

If you're of a historical bent, you might enjoy a new online source, presenting summaries of 101,102 criminal trials: The Proceedings of the Old Bailey, London 1674 to 1834.

Thanks: WisBlawg.

Hatchery Salmon Don't Count for Species Preservation

Judge sides with wild salmon, Seattle P-I, June 13, 2007:

The push by property-rights advocates to count hatchery-bred salmon toward the goals of the Endangered Species Act is misguided and runs afoul of the law, U.S. District Judge John Coughenour ruled Wednesday in Seattle.

Maleng and the UW

Dean Emeritus Roland Hjorth writes about Norm Maleng's relationship with the UW and a fund being established in Maleng's honor. Opinion | Maleng and UW: a special bond | Seattle Times Newspaper, June 14, 2007.

Court rules against labor unions in lawsuit challenging use of worker fees | Seattle Times Newspaper

Court rules against labor unions in lawsuit challenging use of worker fees, Seattle Times, June 14, 2007.

The case: Davenport v. Washington Education Ass'n, 05-1589 (June 14, 2007), available here. It vacates the Washington Supreme Court's opinion.

Bork's Slip and Fall Case

Former Judge Robert Bork, a longtime critic of the tort system, is now a plaintiff in a slip-and-fall case in which he is seeking a million dollars in damages. The New York Times has an editorial: Bork v. Bork, N.Y. Times, June 14, 2007:

Since we believe in the tort system, when properly used, all we would ask is whether Mr. Bork’s unfortunate experience at the Yale Club has led him to re-evaluate any of the harsh things he has said in the past about injured people, much like himself, who simply wanted their day in court.

Thanks: Maureen Howard.

Judge Tries Suing Pants Off Dry Cleaners

A newly appointed DC administrative law judge is suing a dry cleaner for $67 million over a lost pair of pants (based on a penalty per day that it didn't live up to its promise of "same day" service).

The case of the judge’s pants, which opened for trial in a packed courtroom here on Tuesday, has been lampooned on talk radio and in the blogosphere as an example of American legal excess. And it has spurred complaints to the District of Columbia Bar and city officials from national tort reform and trial lawyer groups worried about its effect on public trust in the legal system.

Judge Tries Suing Pants Off Dry Cleaners, N.Y. Times, June 14, 2007.

Thanks: Maureen Howard.

Three Hells Angels members found guilty

The Three Hells Angels members found guilty, Spokesman Review, June 11, 2007. The jury convicted each of three defendants of some charges, but deadlocked on eight charges, including some against a fourth defendant. The acting U.S. Attorney, Jeff Sullivan, said that his office will refile those charges.

The trial was a huge one: jury selection began Feb. 26; opening statements were March 12; and the jury began deliberating May 23.

30(b)(6) Depositions

A long time ago I had a very short post linking to a piece in the Washington State Bar News about depositions under CR 30(b)(6). Since then, it seems that every time I look at SiteMeter to see what sort of searches bring people to this blog, I find searches for 30(b)(6) or 30b6.

People seem to want to know about this. So I figured: let's gather some information. I asked law librarianship student Kelly Aldrich to see what she could find. Here's her guest post:

Federal Rule of Civil Procedure 30(b)(6) and Washington state Civil Rule 30(b)(6) permit a party to compel a corporate entity to designate an agent to testify on its behalf regarding topics outlined in a Rule 30(b)(6) deposition notice or subpoena. Rule 30(b)(6) effectively shifts the burden away from the requesting party (who no longer has to guess at who in the corporate entity may be knowledgeable about a given topic) and toward the corporate entity being deposed or subpoenaed (as the responding entity is in the better position to identify who within the organization is best suited to testify about a given topic).

30(b)(6) depositions are commonplace in litigation involving or concerning corporations. If you represent a party in litigation against a corporate entity, you will want to know how to effectively use and prepare for a 30(b)(6) deposition. If you represent a corporate entity, you will want to know how to advise your client about how to choose an appropriate person to testify on its behalf. And, you’ll want to understand how to adequately prepare the corporate deponent for the 30(b)(6) deposition. It is, after all, the corporate entity being “deposed.”

Here are some resources:

• Steven Caplow, The Art of the CR 30(b)(6) Deposition, Wash. St. B. News, Oct 2005.


• Candace A. Blydenburgh, Picking and Preparing Your Corporate Witnesses for Rule 30(b)(6) Depositions, The Practical Litigator, July 2002.


• Jonathan Sablone, Not Your Father’s Keeper Deposition, The Discovery Standard.


• Susan J. Becker, , Discovery from Current and Former Employees, ABA Publications, 2005, preview available on Google Books. (The library owns this, but unfortunately it's been checked out and is long overdue.)


• Robert A. Schwinger & Philip A. Pfeffer, Selecting And Preparing Corporate 30(b)(6) Witnesses, Metropolitan Corporate Counsel, Sept. 2003, at 1.


• Sidney I. Schenkier (U.S. Magistrate Judge for N.D. Illinois), Federal Rule of Civil Procedure 30(b)(6), GP/Solo, Sept. 2003.


• The 30(b)(6) Witness, Concurring Opinions Blog, April 18, 2006.

Thanks, Kelly!

Prosecutor Candidates

Who's running for King County Prosecutor?
Democrats:

• Keith Scully, formerly an attorney in the prosecutor's office, now legal director of Futurewise, an environmental group.
• Bill Sherman, currently an attorney in the prosecutor's office and a recent candidate for the legislature.

Republican: Dan Satterberg, formerly Prosecutor Norm Maleng's chief of staff and now acting Prosecuting Attorney. The Democrats will face each other in a primary Aug. 21, and the winner will face Satterberg in the general election in November. Democrat Sherman to join prosecutor's race, Seattle Times, June 8, 2007.

Coverage of Maleng's memorial last weekend (I was out of town and missed both the memorial and the newspapers):

• Norm Maleng remembered by family, officials and colleagues, Seattle Times, June 2, 2007.
• Maleng remembered for faith and devotion to family, Seattle P-I, June 2, 2007.

State DOC to pay record fine for withholding from Prison Legal News

State DOC to pay record fine for withholding from Prison Legal News, Seattle P-I, June 8, 2007:

The state Department of Corrections will pay a Seattle-based prisoner-rights newspaper $541,000 for withholding public records -- the largest public-records related settlement in state history.

The Friday judgment comes more than seven years after Paul Wright, the editor of Prison Legal News, submitted two requests for public records detailing how 14 prison medical workers were reprimanded for their treatment of 10 inmates who died or suffered serious injuries.

Transients who killed Samaritan each get maximum

Transients who killed Samaritan each get maximum, Seattle P-I, June 8, 2007.

The article discusses the arguments made by the prosecution and defense at the sentencing hearing.

Online rating system Avvo puts attorneys in the hot seat

Online rating system Avvo puts attorneys in the hot seat, Seattle P-I, June 8, 2007.

This is a much longer article -- looking at various lawyers' scores and quoting a number of local lawyers as well as Avvo's founders -- than the one linked to in yesterday's post.

Judge: City wrongly issued parking tickets on holidays

Judge: City wrongly issued parking tickets on holidays, Seattle P-I, June 8, 2007.

The judge who ruled in this class action case against the City of Seattle is King County Superior Court Judge Harry McCarthy, who taught in the Trial Ad program for several years, both before and after he took the bench.

Three in identity theft scheme -- including forger -- get jail time

Three in identity theft scheme -- including forger -- get jail time, Seattle P-I, June 8, 2007.

One of the defendants apologized and asked the judge for leniency so he could be with his four children. Chief Judge Robert Lasnick (W.D. Wash.) "sentenced Moore to a term six months shorter than the standard range for his crimes. But the judge pointed out that Moore ought to have thought of his children when he was living lavishly with stolen money."

Men sentenced for involvement in prostitution ring

Men sentenced for involvement in prostitution ring, Seattle P-I, June 8, 2007. The men are Chinese nationals who ran a brothel at different locations in Beacon Hill, using women from Southeast Asia and East Asia who had paid smugglers to get into the country and had large debts to repay. The sentencing judge was John C. Coughenour (W.D. Wash.); the prosecutor was assistant U.S. attorney Todd Greenberg.

Jury hears closing arguments in Kent killings

Jury hears closing arguments in Kent killings,| Seattle Times, June 8, 2007:

Even if jurors don't believe the recall of a little girl who survived a savage attack that killed her mother and father in their Kent home more than three years ago, prosecutors say they should believe the many signs pointing to John Morimoto's guilt.

The article relates the points made in closing arguments by prosecutor Don Raz and defense attorney Gary Davis, who "attacked what he called the 'appalling' job done by police and crime-scene analysts at the home."

National Pro Bono Opportunities Guide

The ABA Standing Committee on Pro Bono and Public Service, its project, the ABA Center for Pro Bono, and Pro Bono Net offer a great resource: the National Pro Bono Opportunities Guide.

For any state -- or county within a state -- you can find pro bono opportunities. You can sort in different ways -- for instance, looking only for opportunities in certain areas of law.

Thanks to Cheryl Nyberg, who featured this site as our library's Website of the Week.

Seattle Start-Up Rates and Profiles Lawyers

A Seattle start-up company hopes to help people look for lawyers. Avvo (for "avvocato," the Italian word for lawyer)"claims to list every licensed attorney in Arizona, California, District of Columbia, Georgia, Illinois, New York, Ohio, Pennsylvania, Texas and Washington." For each lawyer, it lists practice areas, indicates whether the lawyer has been disciplined by the bar, and gives a rating. Hiring a lawyer? Avvo can help you, Seattle Times, June 5, 2007.

Since the system is new, many attorneys have not yet been rated by either a client or a fellow attorney. Paul Luvera, a very prominent litigator, has been endorsed by one lawyer. Jeffery Robinson, a Trial Ad instructor, hasn't been rated by a client or a lawyer but has a 10.0 ("superb") Avvo rating, based on experience, industry recognition, and professional conduct.

There are gaps. For instance, when I searched for Bobbe J. Bridge, the system told me that she had been licensed for 31 years but listed her "current areas of practice" as "unknown." (She's a member of the Washington State Supreme Court.) Norm Maleng? Also "unknown." (Until his death last week, he was the King County Prosecutor.) Rob McKenna? "Unknown." (He's the state's Attorney General.)

Avvo is assessing industry recognition based on publications, speaking, and awards, but misses outstanding public figures. OK, so you wouldn't hire these public figures to represent you anyway. But my point is that if the system is purporting to cover every licensed attorney, it still has some work to do. There might be many very able attorneys who have mediocre scores simply because they don't have many years of practice and haven't yet been rated.

Last week I saw an article about the old standby lawyers' directory, Martindale-Hubbell: Anthony Lin, Martindale to Change Focus as Some Firms Opt Out, N.Y.L.J., May 21, 2007.

For decades, all the big firms -- and most of the small firms -- paid to have profiles in Martindale-Hubbell in print and more recently at martindale.com. But now a firm can have a slick website with all the information Martindale-Hubbell would have and more, and there's also a free rival, the Findlaw Lawyer Directory (a/k/a West's Legal Directory). Some top firms have stopped having profiles in Martindale-Hubbell.

So now Martindale-Hubbell is reworking itself. It will start having reviews of firms (from corporate counsel and others) and hopes that this added value will get firms to buy profiles again. (The firms will be reviewed whether or not they buy
profiles.)

It now appears that Martindale has another rival to watch out for in Avvo. And lawyers and clients have more resources to use.

Thanks: Kelly Aldrich, Jonathan Franklin.

Update (June 8): See the longer article on Avvo in today's P-I: Online rating system Avvo puts attorneys in the hot seat, Seattle P-I, June 8, 2007.

New Edition of Mauet's Trial Techniques

We've received the new (7th) edition of Trial Techniques, by Thomas A. Mauet -- KF8915 .M38 2007 at Reference Area.

Photo from Thomas A. Mauet's profile at the University of Arizona.

Lawyer hired for starved boy

A court-appointed guardian hired Seattle attorney David P. Moody to represent a four-year-old Everett child who was removed from the home where authorities believe his father starved him as punishment. HeraldNet: Lawyer hired for starved boy, Hereald, June 1, 2007. Moody used to be a Trial Ad instructor.

Title VII Time Limit

The Supreme Court read the 180-day filing deadline in Title VII very narrowly in Ledbetter v. Goodyear Tire & Rubber Co. (May 29, 2007), barring a plaintiff's pay discrimination claim because the pay decisions were made before the cutoff, even though she continued to receive lower pay.

In an editorial, the New York Times urges Congress to amend the statute to undo this interpretation. Injustice 5, Justice 4, New York Times, May 31, 2007.

Thanks: Michele Storms.

Former Maleng deputy files as Democrat in prosecutor race

Former Maleng deputy files as Democrat in prosecutor race, Seattle Times, June 6, 2007. The former deputy is Keith Scully. Acting Prosecuting Attorney Dan Satterberg has filed to run as a Republican. Candidates must file by Friday to run this fall.

Four siblings awarded $6.2 million in Seattle foster abuse case

Four siblings awarded $6.2 million in Seattle foster abuse case, Seattle Times, June 6, 2007:

Four siblings who were abused in foster care were awarded $6.2 million by a King County jury Tuesday, a verdict that now stands as the largest of its kind in the state.

The jury decided that the state acted negligently when it licensed Pearl Hall to be a foster mother nearly 20 years ago, and that it failed to monitor the home after the four kids were placed.

The former foster children were represented by Rebecca Roe and Kathy Goater (Schroeter Goldmark & Bender).

Undercover Cops in High School

Some police departments use undercover officers, posing as teens, to find drug dealers in high schools. Some have been critical of the practice, including the ACLU of Washington. High school undercover: Look young and act sullen, Seattle Times, June 6, 2007 (focusing on undercover operation in Redmond in 2003); Cops posing as Federal Way students buy drugs in schools, Seattle Times, June 1, 2007 (discussing investigation that led to arrests of 12 students in 3 Federal Way Schools, plus 2 adults not connected with the schools).

Grant for Juvenile Justice; Bridge to Lead

The MacArthur Foundation has awarded a 5-year grant of $10 million to improve juvenile justice in six Washington counties (Benton, Clark, Franklin, King, Pierce and Spokane). Governor's Press Release, June 1, 2007:

Reform efforts will focus on three areas:

• Reducing the disproportionate over-representation of minority youth in the juvenile justice system;
• Reducing reliance on incarceration and increasing effective intervention options for youth engaging in problem behavior such as truancy, so that court intervention is truly the option of last resort; and
• Improving mental health screening, assessment and access to effective mental health services, to reduce the number of youth becoming involved in the juvenile justice system because of untreated mental health needs.

Justice Bobbe J. Bridge will step down from the bench at the end of this year to become founding president of the Center for Children & Youth Justice, the non-profit organization that will work on the projects. Washington Courts Press Release, June 1, 2007.

Justice Bridge has long been active in children's legal issues. In addition to her volunteer work, she and her husband endowed the Bobbe & Jonathan Bridge Professorship in Children and Family Advocacy here at the UW, a post held by Prof. Lisa Kelly.

Photo of Justice Bridge from Washington Courts.

Seattle lawyer suspended for scuffle

Three years ago, an argument between two lawyers in court escalated to a punch. Now the Washington Supreme Court, acting on a recommendation from WSBA, is suspending Oscar Desper III, the lawyer who threw a punch, for 60 days. Seattle lawyer suspended for scuffle, Seattle P-I, June 6, 2006.

The incident was captured on a courtroom security camera. A still image is on KOMO's website: Not the Best Way to Settle an Assault Case, KOMO-TV, June 9, 2004 (I wasn't successful in viewing the video; you might be.) The incident also made Court TV.

Mr. Desper represented a class of African American Boeing employees in an employment discrimination case, reaching a multi-million dollar settlement with an agreement to change various employment practices. Judge John C.

Coughenour also dismissed charges that the lawyers who negotiated the settlement, Oscar Desper III, Bruce Harrell and others, failed their clients. For example, some workers complained bitterly of being left in the dark as the settlement moved forward.

"The suggestion that this result displays anything less than excellent legal ability or unwavering commitment to the plaintiffs is unsupportable," Coughenour wrote.

Boeing bias suit deal approved, Seattle P-I, Oct. 1, 1999.

Hells Angels Update

The jury is apparently still deliberating in the federal trial of four members of the Hells Angels accused of various offenses brought together under RICO. (I'm going only on what I find in the papers.) Meanwhile, Snohomish County deputies executed a search warrant at the home of defendant Rodney Rollness, seizing a trailer they said was stolen. Regardless of the outcome of the federal trial, Mr. Rollness may face another prosecution. Deputies raid home of Hells Angel on trial, Seattle Times, June 1, 2007.

Former Canadian cop sentenced for biting border guard

Former Canadian cop sentenced for biting border guard, Seattle P-I, June 4, 2007. The sentencing was before Magistrate Judge James Donohue in W.D. Wash.

ACLU sues Boeing subsidiary for allegedly facilitating CIA torture

ACLU sues Boeing subsidiary for allegedly facilitating CIA torture, JURIST - Paper Chase, May 30, 2007. The ACLU alleges that Jeppesen Dataplan knowingly provided flights to CIA prisons ("extraordinary rendition") and thus enabled the torture of U.S. detainees.

I looked up a story about this I heard on NPR because I remembered the line: "The ACLU says this is a first for them — to accuse a blue-chip American company of "profiting from torture." ACLU Suit Says Boeing Unit Profited from Torture, May 31, 2007. The NPR story (which you can listen to online) explains that Jeppesen Dataplan's business is providing logistical support -- working on flight plans and so on for its clients to help them get from point A to point B. The suit alleges that they helped with some 70 extraordinary renditions. The company says that its plan is helping its clients go where they ask to go; it doesn't ask why they want to go there or what they plan to do there. (The company's website bears the slogan "Making Every Mission Possible.")

The NPR correspondent predicts that the CIA will intervene to get the case shut down for reasons of national security.

Graphic from A Pilot's Guide to Aviation Weather Services, NOAA.

Judge to release Libby sentencing letters

Judge to release Libby sentencing letters, JURIST - Paper Chase, May 31, 2007.

New DOJ efforts to counter violent crime

Gonzales outlines new DOJ efforts to counter violent crime, JURIST - Paper Chase, June 2, 2007.

The Department of Justice is setting up new violent crime task forces.

DOJ proposes new legislation, the Violent Crime and Anti-Terrorism Act of 2007. According to DOJ's press release (June 1), the law would:

• Double the penalty for transferring a firearm that will be used to commit a crime of violence or drug trafficking offense;
• increasethe maximum penalty under the general conspiracy statute;
• amend the "armed career criminal statute to create a tiered penalty approach for felons with prior drug trafficking or violent felony convictions;"
• lengthen the statute of limitations for violent crimes and terrorism-related crimes;
• "create a new statutory prohibition against crimes of violence by illegal aliens;"
• establish new, graduated sanctions for firearms violations;
• "restore the binding nature" of the sentencing guidelines -- undoing United States v. Booker, which held that they were advisory -- by making the lower end of the range a minimum sentence that must be imposed;
• provide rights of appeal for both the defendant andthe prosecution from sentencing decisions;
• establish a minimum sentence of two years for possessing child pornography;

The press release has a couple of bullet points that seem vague to me:

• Amend terrorism-related authorities to close gaps in the law; and
• Provide additional resources and strengthen existing tools for law enforcement to combat terrorism.

What gaps? Close them how? What tools? Strengthen them how? I guess we'll have to wait for someone in Congress to introduce the Administration's proposed bill.

Details of the empire of a 'Spam King'

Details of the empire of a 'Spam King', Seattle P-I, June 1, 2007. The P-I reports based on details found in affidavits supporting the search warrants executed Wednesday, when federal agents arrested Robert Soloway, allegedly a leader in marketing via gazillions of unsolicited emails routed through others' email addresses.

On Young Nickels's Arrest

Knute Berger comments on the federal arrest of Jacob Nickels, son of Seattle Mayor Greg Nickels, in an alleged casino gambling scam. The private problems of public families, Crosscut, May 30, 2007.

Managing Blogs - Fun Video

If you're ready to start managing your blogs with an RSS reader but you don't quite know what people are talking about, take a look at this fun video: RSS in Plain English, Common Craft - Social Design for the Web, April 23, 2007.

Atticus Maleng

UW 1L Jason Sykes has a nice guest column in this morning's P-I, likening Norm Maleng to the fictional Atticus Finch, because they shared a "nearly inerrant sense of justice, the passion to pursue it and the humility to always remain respectful and dignified while doing so." Maleng was our own Atticus Finch, Seattle P-I, June 1, 2007.

See also this piece by the P-I's associate publisher: Kenneth F. Bunting, Maleng made the justice system better, Seattle P-I, June 1, 2007.