Seuss-like Order: Judge Indulges in Poultry Poetry

You've heard of poetry in motion? Here's poetry in response to a motion.

A pro se prisoner filed a hard-boiled egg with his case, and the magistrate judge responded with an order in the cadence of Green Eggs and Ham. It's been picked up by the Associated Press and a bunch of bloggers. Here's a link to Abovethelaw: A Legal Tabloid, which has a pdf of the order.

A couple of commenters decry judges using humor to belittle litigants.

For more opinions in verse and also law review articles critiquing judicial humor, see our guide, Judicial Humor.

The prisoner says that he is an Orthodox Jew and complains that the prison refuses to serve him a kosher diet. For a little more on issues relating to religion in prisons (including Gentile prisoners who say they're Jewish largely to get a more palatable diet), see this earlier post linking to a Seattle Weekly article.

If you would have gone with "I am the eggman" rather than "I do not like green eggs and ham," then see this post about rock lyrics in legal opinions.

Photo from National Agricultural Library, USDA.

Hard Case: Job Market Wanes for U.S. Lawyers

Hard Case: Job Market Wanes for U.S. Lawyers, Wall Street Journal, Sept. 24, 2007.

It's not particularly trial-related, but why not link to a front-page story about the employment prospects for law school grads?

The end of the article links to some posts in the WSJ's Law Blog welcoming One Ls and offering advice (with various commenters weighing in).

NWIRP Honors IFAP, Ramasastry

At the Northwest Immigrant Rights Project's annual gala on Saturday, NWIRP gave its amicus award to Prof. Anita Ramasastry for her work as the faculty coordinator for the UW's Immigrant Families Advocacy Project. (See the law school's press release, Sept. 13.)

Since 1996 IFAP's law students teamed with pro bono attorneys have been helping immigrant women and children who are the victims of domestic violence. Each year, about 50 law students (many of them 1Ls) volunteer to help the women navigate the immigration system and take advantage of the laws that permit them to retain their immigration status even if they leave the abusive partners who may have enabled them to immigrate in the first place.

Attorneys who will commit to taking one case during the year can take the upcoming IFAP CLE (Oct. 26) for the cost of materials ($25).

The NWIRP dinner is always inspirational. One speaker was a client who told his story of coming to the U.S. from Congo and seeking asylum. Immigration officials handcuffed him and put him in detention. He remarked wryly that he wanted protection and they gave him "maximum protection." He was denied asylum and lost hope. But a NWIRP volunteer attorney from K&L Gates told him he could appeal and took the case. He lost the appeal. He lost another appeal. But NWIRP posted a bond for him so he could be released from the detention center and, eventually, he was granted residency.

The violation of immigration laws is considered civil rather than criminal, so the people facing deportation don't have a right to counsel. There are no public defenders for immigration cases. So most of the thousands of people who face proceedings in our state each year do so alone. NWIRP's staff and volunteers do incredibly valuable work, representing immigrants and providing legal orientation sessions to those detained at the Northwest Detention Center. (This year, the detention center's capacity went up to 1000 beds. It is at capacity.)

Reports of "deficient" behavior cost two prosecutors their jobs

Reports of "deficient" behavior cost two prosecutors their jobs, Seattle Times, Sept. 23, 2007.

The article doesn't indicate what got the attorneys from the Clallam County Prosecutor's Office fired, but it was off duty during Labor Day weekend.

They were both junior: one graduated from law school in 2006 and was hired last spring; one graduated in 2007 and was working as an intern pending bar passage.

Historylink

Seattle lost Walt Crowley this week.

In four decades spanning student revolution and the information revolution, Mr. Crowley went from campus radical to the city's most prominent citizen historian, co-founding and running HistoryLink.org, an online encyclopedia of Washington state history.

Walt Crowley, historian, part of city history, dies at 60, Seattle Times, Sept. 22, 2007.

Although we've lost Mr. Crowley, we have not lost the wonderful resource he created. (Indeed, Crowley penned a plan for HistoryLink's future, Seattle Times, Sept. 23, 2007.)

Among the thousands of articles on our state's history that are on HistoryLink, there are many on our legal history, e.g.:

• David Wilma, First criminal trial in future Washington Territory convenes on October 2, 1849, HistoryLink.org Essay 5684 (2004) (trial of six Snoqualmie Indians for murder).
• Carl P. Schlicke, The Robinson Affair: a Spokane Doctor's Ordeal (1929), HistoryLink.org Essay 7354 (1983, edited by David Wilma and posted in 2005) (doctor who testified against another in a medical malpractice case).
• David Wilma, Gary Leon Ridgway pleads guilty to murdering 48 Green River Killer victims on November 5, 2003, HistoryLink.org Essay 4262 (2003).
• David Wilma, Dwyer, William L. (1929-2002), HistoryLink.org Essay 5338 (2003) (prominent litigator, federal district judge, and author).

If you're curious about the backstory in a case or issue or you'd like a quick biography of a judge or other prominent figure, give HistoryLink a try.

(I didn't set out to find only articles by David Wilma, but these all happen to be. He was the Deputy Director of HistoryLink -- which has a large roster of board members, volunteers, and staff -- from 2003 to 2007.)

Judges may appoint prosecutor to succeed Mckay

Judges may appoint prosecutor to succeed Mckay, Seattle Times, Sept. 23, 2007:

[Jeffrey] Sullivan was named acting U.S. attorney shortly after the Justice Department's controversial firing of John McKay in December. His appointment will end Oct. 12, along with those of 11 other interim U.S. attorneys, because of legislation passed this spring, according to the Justice Department. If the White House does not nominate a permanent replacement for McKay, the U.S. District Court in Seattle can name a new interim federal prosecutor. The decision would fall to the court's senior judge, Robert Lasnik, a Clinton appointee who has been preparing to fill the vacancy.

Fugitive Safe Surrender; Shame and Guilt

Today's Weekend America had a story about the program sponsored by the Justice Department that gives people with outstanding warrants an opportunity to surrender, generally at churches. A Fugitive Safe Haven, Sept. 22, 2007. I posted a link to a New York Times article on the same program this summer (earlier post). The radio program adds the personal touch of an interview with two people who turned themselves in.

I was also interested in the radio interview with Prof. June Price Tangney, a clinical psychologist at George Mason University who has studied "moral emotions" -- principally shame and guilt -- including in the context of the justice system. I looked up her publications, and found this one that might interest Trial Ad Note readers:

Working at the Social-Clinical-Community-Criminology Interface: The George Mason University inmate study. [References].
2007
Tangney, June Price; Mashek, Debra; Stuewig, Jeffrey.
E-Mail Address Tangney, June Price: jtangney@gmu.edu
Journal of Social & Clinical Psychology. Vol 26(1) Jan 2007, 1-21.

This article describes our attempt to import social-personality theory and research on moral emotions and moral cognitions to applied problems of crime, substance abuse, and HIV risk behavior. Thus far, in an inmate sample, we have evidence that criminogenic beliefs and proneness to guilt are each predictive of re-offense after release from jail. In addition, we have evidence that jail programs and services may reduce criminogenic beliefs and enhance adaptive feelings of guilt. As our sample size increases, our next step is to test the full mediational model, examining the degree to which programs and services impact post-release desistance via their effect on moral emotions and cognitions. In addition to highlighting some of the key findings from our longitudinal study of jail inmates over the period of incarceration and post-release, we describe the origins and development of this interdisciplinary project, highlighting the challenges and rewards of such endeavors.

(PsycINFO Database Record (c) 2007 APA, all rights reserved) (journal abstract).

Audit: WSP lab 'severely deficient'

Fred Russell's defense is using a 2004 audit of the Washington State Patrol crime lab to support its motion to suppress evidence of his blood alcohol level, becausee the lab lost the vials with the blood samples. Audit: WSP lab 'severely deficient', Spokesman Review, Sept. 20, 2007. Russell's attorney is UW Trial Ad Instructor Francisco Duarte.

Man gets 5 months for lying about war

Man gets 5 months for lying about war, Seattle Times, Sept. 22, 2007:

A Tacoma man who falsely claimed he was a decorated war hero and even appeared in a video that protested the U.S. role in Iraq was sentenced Friday to five months in a federal prison for making false statements to the Department of Veterans Affairs.

The case was in the Western District of Washington, Judge Lasnik.

I was curious about the statute making it a crime to like to the VA. See 18 USC § 289:

Sec. 289. False claims for pensions

Whoever knowingly and willfully makes, or presents any false, fictitious or fraudulent affidavit, declaration, certificate, voucher, endorsement, or paper or writing purporting to be such, concerning any claim for pension or payment thereof, or pertaining to any other matter within the jurisdiction of the Secretary of Veterans Affairs, * * *
Shall be fined under this title or imprisoned not more than five years, or both.

Back in my TV-besotted youth, there was a margarine commercial with the tagline "It's not nice to fool Mother Nature." There are likewise penalties for fooling Uncle Sam.

Referendum 67

Here are some recent items about Referendum 67:

• Insurers, lawyers square off, Olympian, Sept. 12, 2007.
• Referendum 67 deserves a 'yes' vote, Olympian, Sept. 19, 2007.
• David Seago, Kreidler bucks insurers on R-67, Inside the Editorial Page (News Tribune blog), Sept. 17, 2007.

Class Action Kickback Indictment

Melvyn Weiss, cofounder of Milberg Weiss Bershad & Schulman, was indicted by federal prosetors in L.A., who charged that he conspired to pay kickbacks to people who agreed to be plaintiffs in class-action cases. N.Y. lawyer indicted in kickbacks investigation, Seattle Times, Sept. 21, 2007.

Youth of Color in Criminal Justice System

This morning's Seattle Times has a front-page story about a rally protesting the treatment of six African American teens charged with attempted murder in the beating of a white teen in Jena, LA. "Jena Six" rally puts justice system on trial, Seattle Times, Sept. 21, 2007.

The story mentions "a January report from the National Council on Crime and Delinquency." I was curious and thought some readers might be as well. The 38-page report is: And Justice for Some: Differential Treatment of Youth of Color in the Justice System (2007). Here's a string of telling statistics from the executive summary:

From 2002 to 2004, African Americans were:
• 16% of youth.
• 28% of juvenile arrests.
• 30% of referrals to juvenile court.
• 37% of the detained population.
• 34% of youth formally processed by the juvenile court.
• 30% of adjudicated youth.
• 35% of youth judicially waived to criminal court.
• 38% of youth in residential placement.
• 58% of youth admitted to state adult prison.

Id. at 3.

Victorious Pants Defendants Have Losses

A lawsuit in DC got a lot of attention -- an administrative law judge sued a dry cleaner for millions of dollars over a problem with a pair of pants. He lost. The Korean couple that owned the dry cleaning business got a lot of support, including fundraisers that covered their attorney's fees. But they have still suffered losses -- they lost a lot of business and suffered a lot of stress. And now they have closed the shop (they still have one other shop). Even litigation that you win can have a high cost. Marc Fisher, Dry Cleaners' Victory in Pants Lawsuit Still Comes With a Loss.

Family gets wish in sibling slaying: leniency

Family gets wish in sibling slaying: leniency, Seattle Times, Sept. 15, 2007.

Almost one year after Michael "Mikey" Miller was accidentally shot and killed in their Burien home, the couple went before a King County judge Friday to plead for leniency for the teen who pulled the trigger: their other son, Jordan Jantoc.

* * *

"I think this is a case where justice needs to be tempered with mercy," [Superior Court Judge Harry] McCarthy said before he sentenced Jordan to 24 months of home detention, followed by probation when he will be required to give speeches on gun control.

Judge McCarthy is also a UW Trial Ad instructor.

Fees for Fee Research?

Columnist Danny Westneat, "pawing through the firm's expense sheets," discovered that Davis Wright Tremaine has included in his fee request "287 hours of work related to its own billing. This includes researching how to collect the fees. Tabulating the hours everyone worked and expenses they incurred. Writing up memos defending their bills as reasonable." The bill just keeps going up, Seattle Times, Sept. 19, 2007.

Westneat says this is nuts. He doesn't buy DWT's argument that charging the school district big fees is a way to prevent further violations of civil rights. He doesn't buy DWT's analogy of this case to one where prison guards beat up a prisoner.

Update (Sept. 23): A reader, Scott St. Clair, wrote to Westneat about his column:

"It's curious that Westneat, given his personal history of being on the receiving end of similarly motivated School District abuse, isn't more sympathetic to the law firm," he wrote. "And less sympathetic to the villains of the piece, the politically motivated, educationally oblivious school board... ."

He's talking about the mess I was embroiled in last year, when, after years involved in our local school, we left due in part to an administration we felt was resistant to whites integrating a black school.

St. Clair's point: Seattle schools are so fixated on race that even the nation's highest court isn't enough to check it. The mule won't notice without "a board upside the head."

He might be right. I still think fining the schools is overkill. But I love it when a reader makes me doubt.

Danny Westneat, So lovely when you're mad, Sept. 23, 2007.

State Sen. Sues God

State Sen. Ernie Chambers Sues God - , KETV Omaha, Sept. 17, 2007:

OMAHA, Neb -- State Sen. Ernie Chambers is suing God. He said on Monday that it is to prove a point about frivolous lawsuits.

Chambers said senators periodically have offered bills prohibiting the filing of certain types of suits. He said his main objection is that the constitution requires that the doors to the courthouse be open to all.

"Thus anybody can file a lawsuit against anybody -- even God," Chambers said."

Thanks: Lea Vaughn.

Innocence Project Northwest Celebrates 10th Anniversary with Special Screening of "The Trials of Darryl Hunt"

Innocence Project Northwest Celebrates 10th Anniversary with Special Screening of "The Trials of Darryl Hunt", Thur. Oct. 11, 2007. Check it out -- a chance to see a great movie (with appearances by Darryl Hunt and his attorneys), to support a good cause, and to join other supporters for hors d'oeuvres and chat.

Drug Forfeiture; Church Liability for Abuse

This morning's Seattle Times reports two Court of Appeals cases that address, in different ways, the web of responsibility for others' actions.

On page A1, the story is about parents whose cars were seized under the drug forfeiture law (RCW 69.50.505) because their son was using them to deal drugs. They said they didn't know, but Division I upheld the seizure because they should have investigated, given the circumstances. Son is busted for drugs, but it's mom and dad who lose the cars, Seattle Times, Sept. 19, 2007.

The case is In Re The Forfeiture Of One: 1970 Chevrolet Chevelle (wln Cv02849), No. 58943-1-I, Wash. Courts website (Wash. App. Div. I Sept. 17, 2007).

On page B1, the story is about the Mormon church being held liable for a man's sexual abuse of his step-daughters. After years of abuse, the older girl talked to the family's bishop, who persuaded her not to report the abuse and instead to pray for her family. The court upheld an award against the church based on the bishop's role, but not the portion of the award attributable to the man.

The case is Doe v. Corporation of President of Church of Jesus Christ of Latter-Day Saints, No. 57416-7-I,--- P.3d ----, 2007 WL 2696764 (Wash.App. Div. 1, Sept. 17, 2007). (It wasn't on the Washington Courts website when I checked.) The case attracted amicus participation from the Washington State Trial Lawyers Foundation and the Washington Defense Trial Lawyers.

9th Circuit Blocks Human Rights Suit Against Caterpillar

Four years ago a peace activist from Olympia was killed by an Israeli bulldozer that was razing a Palestinian home. Her family -- and the families of 16 Palestinians who were killed or injured -- sued Caterpillar, the manufacturer of the bulldozer, for abetting human rights violations. Corrie family suit blocked by judges, Seattle Times, Sept. 18, 2007.

The case is Corrie v. Caterpillar, Inc., No. 05-36210 (9th Cir. Sept. 17, 2007), available on the 9th Circuit website.

Civil procedure geeks (and I mean that in a good way) might be interested in the way the case was dismissed: defendants moved for dismissal under Fed. R. Civ. P. 12(b)(6), but the court took it as going to the heart of jurisdiction -- i.e., Fed. R. Civ. P. 12(b)(1) -- and thus considered facts not in the complaint.

In concluding that jurisdiction is precluded by the political question doctrine, the court noted:

The decisive factor here is that Caterpillar’s sales to Israel were paid for by the United States. Though mindful that we must analyze each of the plaintiffs’ “individual claims,” id. at 547, each claim unavoidably rests on the singular premise that Caterpillar should not have sold its bulldozers to the IDF. Yet these sales were financed by the executive branch pursuant to a congressionally enacted program calling for executive discretion as to what lies in the foreign policy and national security interests of the United States.

The plaintiffs were represented by Gwynne Skinner and Ronald C. Slye from Seattle University's Ronald A. Peterson Law Clinic, as well as by attorneys from the Center for Constitutional Rights (New York). Erwin Chemerinsky (Duke University) argued for the plaintiffs-appellants. There were also a number of amici, including the United States, the National Chamber Litigation Center, and groups of law professors.

(Side note: Prof. Chemerinsky will be the dean of the new law school at University of California - Irvine. UCI, Chemerinsky putting on a happy face, L.A. Times, Sept. 18, 2007. What made this newsworthy is that UC-Irvine announced it, then withdrew its offer. After much criticism for the withdrawal, the university rehired him.)

Insurance Industry's Ads Hit Hard

David Postman, Trial lawyers complain insurance industry's ads are "slanderous," Seattle Times, Sept. 14, 2007.

The trial attorneys funding their Referendum 67 campaign say the insurance industry's ads making fun of lawyers are "slanderous, uncivil and reckless."

Karen Koehler, president of the Washington State Trial Lawyers Association, wrote a letter last week to the Washington State Bar Association (WSBA), with copies sent to members of the state Supreme Court, complaining about TV spots featuring the fictional law firm of Sooem Settle & Kashin.

There's more in Postman on Politics (Sept. 13) -- and of course there are comments.

WSTLA president Karen Koehler is also a UW Trial Ad instructor.

DSHS settles rape lawsuit

The state Department of Social and Health Services has agreed to pay $2.5 million to a former patient at Eastern State Hospital who was raped by a nurse.DSHS settles rape lawsuit, Spokesman Review, Sept. 5, 2007.

The patient was represented by former Trial Ad instructor David P. Moody.

Head of Spokane Hells Angels gets 7 years

Judge Lasnik sentenced Richard Fabel this morning: Head of Spokane Hells Angels gets 7 years, Spokesman Review, Sept. 17, 2007.

Civil Rights Attorney Fees for DWT?

Billing in "pro bono" cases is fodder for ethics debate, Seattle Times, Sept. 17, 2007.

Davis Wright Tremaine is seeking attorneys fees in the school desegregation case. (See earlier post.)

Is it cricket for a firm to say it's taking a case pro bono and then seek fees from the defendant? DWT says yes: "pro bono" means that the clients didn't have to pay. Making a government pay fees creates a disincentive for governments to deprive people of their civil rights.

Some say it's OK to get the fees as long as they're turned over to charity.

Some say that it would be too bad to take money away from the school district's educational mission. But isn't that always the case with civil rights cases and fees? When a government has to pay attorney's fees to the successful plaintiffs, then that money isn't available for government services. When civil rights plaintiffs get attorney's fees from a police department or prison or DSHS, then the money can't be used for better policing, better conditions for prisoners, or better health care and social services.

What Can Law Schools Do Better?

The Complete Lawyer, v.3, no.5 (Sept. 2007) is devoted the theme "What Can Law Schools Do Better?"

I heard about this from David Giacalone at f/k/a, who also prepared a directory of law-related blogs on professionalism, work-life balance, and marketing.

Gov Appoints Superior Court Judge

Gregoire appoints Craighead to King County Superior Court, Seattle Times, Sept. 7, 2007.

Governor Gregoire's press release (Sept. 6, 2007) has much more information about Judge Susan J. Craighead.

Security Cameras in Seattle

Jennifer Sullivan, Look up: Seattle cops may soon be watching, Seattle Times, Sept. 7, 2007:

Seattle police may turn to private security cameras around the downtown business core to help watch for assaults, drug deals and other crimes.

Following the lead of many other U.S. cities, police and the Downtown Seattle Association are examining the creation of a surveillance system that would allow officers to track live video footage from security cameras on and around downtown buildings.

But the idea has been sharply criticized by privacy advocates.

The article mentions an August ACLU report. That report is Under the Watchful Eye: The Proliferation of Video Surveillance Systems in California, by Mark Schlosberg and Nicole A. Ozer of the ACLU of Northern California, issued jointly by the ACLU of Northern California, the ACLU of Southern California, and the ACLU of San Diego and Imperial Counties.

Suspect in 1996 slaying wins right to fourth trial

Suspect in 1996 slaying wins right to fourth trial, Seattle Times, Sept. 7, 2007.

Trial 1 (1997): mistrial - prosecutors revealed that a key witness had been in jail at the time of the crime

Trial 2 (1997): conviction overturned in 2002 -- error to admit testimony by police detective about defendant's leadership qualities. State v. Everybodytalksabout, 145 Wn.2d 456, 39 P.3d 294, Findlaw (2002).

Trial 3 (2003): conviction overturned yesterday (by a unanimous state Supreme Court) - admission of statement made to a probation officer error because defendant's counsel was not present. State v. Everybodytalksabout, No. 78514-7, Wash. Courts site (Sept. 6, 2007).

Feds Indict Peer-to-Peer Identity Thief

Federal prosecutors indicted Gregory Kopiloff yesterday, alleging that he used Limewire peer-to-peer filing sharing software to steal financial information to create credit-card and bank-accounts using other people's identities. David Bowermaster, Indictment here marks "new age" of ID theft, Seattle Times, Sept. 7, 2007.

Prosecutors say that this use of peer-to-peer filing sharing is becoming common. They even had a security consultant at their news conference show how a stream of P2P searches includes requests for terms like "medical billing" and "password" as well as for pornography and music.

The Times article online links to the indictment.

Law-Related Conferences

Every year there are hundreds of law-related conferences, on topics as diverse as law and psychology and law and Catholic social theory. Now there's a way to find out about upcoming conferences. The new Legal Scholarship Blog posts information about conferences, as well as calls for papers and law faculty colloquia.

Postings that migt interest Trial Ad Notes readers have included:

• Where Truth Meets Fiction: A National Symposium on the Intersection of Forensic Science and Pop Culture at Duquesne University School of Law in Pittsburgh, Pennsylvania on April 3-5, 2008.
• Interrogations & Confessions: A Conference Exploring Current Research, Practice, & Policy, Sept. 27-29, 2007, at UTEP.
• Punitive Damages, Due Process, and Deterrence: The Debate After Williams, Charleston, Sept. 7 (tomorrow -- guess this is short notice, but it's just an example of the sort of conference notice you might find!)

Summer with Farmworkers in Yakima

A Seattle U student describes his summer job working on a farmworker project at Columbia Legal Services in Yakima: Michael Khalili, How I Spent My Summer Vacation: Internship Opens Eyes on Farm Workers’ World, Bar Bull., Aug. 2007.

DWT Seeks Fees in School Case

Davis Wright Tremaine is asking for court-awarded attorney's fees in the school desegregation case decided by the Supreme Court in June in which DWT represented the parents against the Seattle Public Schools. Law firm wants school district to pay $1.8M, Seattle Times, Sept. 6, 2007.

The school district argues that the parents were not the "prevailing party" within the terms of the attorney's fee statute, since Justice Kennedy's concurrence supported the school district's position in part.

The Ninth Circuit will decide the fee application.

I assume that the attorney's fees statute they're proceeding under is 42 U.S.C. § 1988:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, * * * the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs * * *

The case is Parents Involved in Community Schools v. Seattle School District No. 1, No. 05-908, slip opinion pdf (June 28, 2007). See post. For more on plurality opinions, see this post.

Law Professors on Juries

A law professor blogged about his notice for jury duty -- he said he hoped not to have to do it, didn't like litigation and wasn't interested in the experience. Several other professors have commented with their experiences serving on juries. Gordon Smith, "Jury service is an opportunity and an obligation shared by all adult citizens", Conglomerate Blog: Business, Law, Economics & Society, Aug. 30, 2007.

The Trial Technologist’s View

Blake Boyd, a consultant who works on trial presentations has a new blog about trials he's worked on and technology tips. Check out The Trial Technologist’s View.

Thanks: Internet Legal Research Weekly, Sept. 2, 2007.

Jacob Nickels Pleads Guilty in Casino Case

Mayor's son pleads guilty in casino scam, Seattle Times, Aug. 31, 2007. Jacob Nickels (the son of Mayor Greg Nickels) is represented by Jeffery Robinson (a UW Trial Ad instructor).

$5M+ Verdict in Seattle Med Mal Case

Four days after Mr. Tri Hoang, 30, was sent home from the ER at Swedish Medical Center with acid reflux medicine, he died of an aortic rupture. Now a jury has awarded Hoang's family $5.39 million in its suit against Grace Dy, the ER doctor who misdiagnosed him. It did not find liable his regular doctor at a UW clinic who diagnosed a heart infection two days after the ER visit. $5 million award in negligence case, Seattle P-I, Aug. 30, 2007; Jury awards $5.39 million to family in suit over medical negligence, Seattle Times, Aug. 31, 2007.

After an investigation, the State Board of Health had found that Dr. Dy's actions fell "within the standard of care."

The P-I's "Soundoff" page shows a range of opinion along the lines you might expect -- cases like this are signs of litigiousness or examples of how the tort system protects people. At least one writer questions bringing a case when the State Board of Health had cleared the doctor. I don't know how extensive a Board of Health investigation is, but I note that the trial lasted a month. There was surely a lot more to this than what could be covered in the newspaper stories -- and probably more than what the Board of Health reviewed.

The Hoang family was represented by Felix Gavi Luna and Mike Wampold of Peterson Young Putra. Both are UW Trial Ad instructors (and UW Trial Ad alumni too).

Judge Spares Dog from Euthanasia

The executor of an estate sought an order to have the decedent's dog euthanized because the late owner had spoiled it so badly she believed that the dog could not be happy with anyone else. King County Superior Court Judge Hugh C. Todd denied the order on humanitarian grounds.

This story is old news -- it was covered in the Seattle P-I Sept. 10, 1955 -- but, as regular readers of this blog know, I can't resist a good dog story. The case can be seen as a harbinger of arguments made by contemporary animal law advocates who say that animals should be seen as more than personal property. As Judge Todd said: a dog has some rights too.



Hugh C. Todd served on the King County Superior Court from 1934 to 1959. When I checked HistoryLink.org to see if it had anything about him, I found Plot to sink the MV Hiye Maru in Elliott Bay fails on January 20, 1938 (Daryl C. McClary, December 28, 2005). Two Canadian men had conspired to sink a Japanese freighter to aid the China in its war against Japan. One man died of hypothermia while trying to place the bomb; Judge Todd presided over the trial of the survivor. Again, this isn't current news about trials and trial practice, but it's a fascinating story nonetheless. The survivor was acquitted, by the way, because of his testimony that he acted under duress.

Of judicial campaigns and public sentiment « Voir Dire

Jeff Yates, Of judicial campaigns and public sentiment, Voir Dire blog, Aug. 16, 2007:

My co-author, Damon Cann, and I recently published a piece in American Politics Research on the dynamics of citizens’ support for their state courts. In our paper “Homegrown Institutional Legitimacy: Assessing Citizens’ Diffuse Support for State Courts,” we find that, among other factors affecting citizens’ perceptions of state courts, judicial elections and campaign contribution concerns were negatively associated with citizens’ views of the legitimacy of state courts.

A commenter (Mike Green) says that he's working on a dissertation about judicial elections and has found a difference between partisan and nonpartisan elections: he finds people where judicial elections are nonpartisan are not as informed about judicial issues as those where judicial elections are partisan.

Coe attorneys agree on statement

SR.com: Coe attorneys agree on statement, Spokesman Review, Aug. 29, 2007:

Attorneys agreed today on the wording that will be presented to the jury in the civil commitment trial of South Hill rapist Kevin Coe after he refused to take part in an evaluation that would have tested his arousal levels to images of forced sex.

The civil commitment trial is scheduled for March.

One of the state's attorneys on the case is Trial Ad instructor Malcolm Ross.

Overview of Jury Research

Prof. Shari Seidman Diamond looks at the state of jury research in Beyond Fantasy and Nightmare: A Portrait of the Jury, 54 Buffalo L. Rev. 717 (2006).

This is a very helpful introduction to the field. Prof. Diamond begins by laying out 10 common claims about juries -- e.g., that civil juries are pro-plaintiff, that jury selection determines the outcome of cases, that juries defer to high-status experts, and so on. Then she discusses the methodologies social scientists have used to try to test these claims and discusses "what we have learned (and not learned) from empirical studies of the jury."

A pdf copy is available on her faculty profile page.

"Jury Duty" Coming to TV

What do Phyllis Diller, Ed Begley Jr., Bruce Vilanch, Paula Poundstone, and Dick Van Patten have to do with trial practice?

They are among the celebrity jurors who'll be on a new syndicated show, "Jury Duty," due for release on Sept. 17. Celebs called for 'Jury Duty,' Hollywood Reporter, July 9, 2007.

The reality show will have a three-person jury consider small claims. If the jury can't agree, then the case will be decided by the judge, Bruce Cutler.

Mr. Cutler is also the lead defense attorney for Phil Spector in his murder trial. He made news by leaving the trial in order to film some episodes of the TV show.

Cutler vowed Monday to deliver the closing argument in the Spector trial even though he will not have been in court for much of the defense case. * * *

Cutler might not be breaking any ethical rules by taping the show during the trial, but “it’s certainly unorthodox,” Loyola University Law School professor Laurie Levenson said.

“The ethical question is ‘Can he still reach the level of competence needed to represent a client on a murder charge?”’ Levenson said. “If he’s super lawyer and he can do it, he won’t be violating ethics, but he certainly will raise some eyebrows.”

Lawyer leaves murder trial to tape TV show, LJ World, July 4, 2007.

The trial continues, by the way. On Thursday, the prosecution was presenting rebuttal evidence. For accounts of this celebrity trial, see Court TV, the L.A. Times, or Rolling Stone's blog, The Phil Spector Trial: We Watch Court TV So You Don't Have To.

Thanks: National Center for State Courts, Jur-E Bulletin 08-24-2007.



Ninth Circuit reverses within-guideline sentence as substantively unreasonable!!

Douglas A. Berman, the author of Sentencing Law and Policy, discusses United States v. Paul, No. 06-30506, court website (Aug. 17, 2007)(unpublished): Ninth Circuit reverses within-guideline sentence as substantively unreasonable!!, Aug. 17, 2007.

PD Cited for Contempt for Not Being Ready

A public defender in Ohio said he wasn't prepared to go forward with a case, since he had only gotten the case the day before. The judge cited him for contempt and had him sit in jail for five hours. Carolyn Elefant tells the story and links to more info: Judge Criticized for Jailing Public Defender Unprepared to Go Forward, Law.com - Inside Opinions: Legal Blogs, Aug. 22, 2007.

How to Preserve Computer Data

What if you want to preserve data that's on a computer's hard drive but you don't want to hire aa computer expert? Craig Ball, a trial lawyer and computer forensics special master, offers suggestions in Do-It-Yourself Forensics, Law Technology News, July 12, 2007:

I challenged myself to come up with forensically sound imaging methods for conventional IDE and SATA hard drives -- methods that would be inexpensive, use off-the-shelf and over-the-net tools, yet simple enough for nearly anyone who can safely open the case and remove the drive. In that vein, the safest way to forensically preserve evidence is to employ a qualified computer forensics expert to professionally 'image' the drive and authenticate the duplicate. No one is better equipped to prevent problems or resolve them should they arise.

Trial Presentation Blog

Interested in technology and techniques for presenting information? Take a look at Trial Presentation Blog. Written by Charles Perez, who puts together visual and audio presentations for lawyers and corporations, it discusses some technical things (like the risks of digital audio that sacrifices fidelity for space) and some not-so-technical things (like how effective it was to impeach a witness by showing a video clip of her deposition alongside images of documents).

Thanks: Internet Legal Research Weekly.

Pants Story Has Legs

Remember the DC administrative law judge who sued dry cleaners for millions of dollars over a problem with a pair of suit pants? The story keeps going and going.

The plight of the Korean couple that owned the dry cleaning business and had to defend the suit became a cause celebre for the U.S. Chamber of Commerce, which held a fundraiser for them. The local Asian American Bar Association also held a fundraiser. Now that they have enough money to cover their expenses, they've offered to release the plaintiff from his court-ordered obligation to pay them if he'll drop the appeal.

Here are the most recent articles from washingtonpost.com (search: "roy pearson" pants):

1.Roy Pearson, left, shown being questioned...

Jacquelyn Martin -- Associated Press

08/17/2007

Photo

Roy Pearson, left, shown being questioned by a journalist after leaving D.C. Superior Court in June, has filed an appeal in the missing pants case. Yesterday, the judge in the initial case, in which Pearson sought $67 million from a Washington dry cleaners, was based on legal theories "unsupported in fact or in law."

2.Judge Says Cleaners' Bid Not Frivolous

Henri E. Cauvin, B04 (Post)

08/17/2007

Article

The judge who sent Roy Pearson packing gave him a final sendoff yesterday.In a written order, D.C. Superior Court Judge Judith Bartnoff offered her take...the Northeast Washington dry cleaners to collect attorneys' fees stemming from Pearson's failed lawsuit over a pair of pants. They were hardly frivolous, as Pearson had claimed, she said.Ordinarily, awarding attorneys' fees against a consumer plaintiff...

Ordinarily, awarding attorneys' fees against a consumer plaintiff such as Pearson would be unusual, Bartnoff said.

"But this is an unusual case, in which the plaintiff attempted to take what was at best a misunderstanding about one pair of pants and expand it to a claim of $67 million, based on legal theories that -- once they clearly were articulated -- were unsupported in fact or in law," the judge said.

3.Offbeat : Roy Pearson Appeals Custom Cleaners Decision

Emil Steiner (washingtonpost.com)

08/15/2007

Blog

4.Judge Who Filed Suit Plans to Appeal Defeat : Olive Branch From Cleaners Rejected

Henri E. Cauvin, B04 (Post)

08/15/2007

Article

The Pants Judge isn't giving up.A day after the dry cleaners he sued tried to make peace, D.C. Administrative Law Judge Roy Pearson filed notice yesterday that he plans to appeal the verdict against him to the District's highest court.The owners...

5.'Pant Suit' Continues With an Appeal

AP (washingtonpost.com)

08/15/2007

Video

A District of Columbia administrative law judge who lost a $54 million lawsuit against a dry cleaner over a missing pair of pants is continuing to press his suit. Roy Pearson filed an appeal after a judge rejected his original lawsuit in June.

6.Offbeat : Roy Pearson v. Custom Cleaners The Final Chapter?

08/14/2007

Blog

7.Pearson to Appeal Pants Verdict

Henri E. Cauvin (Edition)

08/14/2007

Article

A day after the dry cleaners he sued tried to make peace, D.C. Administrative Law Judge RoyPearson filed official notice today that he plans to appeal the verdict against him to the District's highest court.The owners...before the deadline for filing his notice of appeal, Pearson -- whose $54 million suit arose from a dispute over a pair of pants that he claimed went missing -- submitted the requisite paperwork to the D.C. Superior Court.So, for now at least, the...

8.Judge Appeals $54M Pants Dismissal

(AP Online)

08/14/2007

Article

WASHINGTON -- A judge who lost a $54 million lawsuit against a dry cleaner over a missing pair of pants continues to press his suit.Roy Pearson, a District of Columbia administrative law judge, filed a notice of appeal Tuesday.Jin Nam Chung and Soo Chung, the owners...

9.Dry Cleaners Cut Plaintiff Some Slack

Henri E. Cauvin, B01 (Post)

08/14/2007

Article

The dry cleaners aren't pressing their case against the Pants Judge.In a surprise turn yesterday, the small-business owners sued by D.C. Administrative Law Judge Roy Pearson withdrew their demand that he pay nearly $83,000 for their legal bills, saying that enough money had been raised from supporters...

10.Offbeat : Pearson v. Custom Cleaners The Saga Continues

Emil Steiner (washingtonpost.com)

11.Dry Cleaners Ask Judge to Forgo Appeal, Let Suit End

Henri E. Cauvin (Edition)

08/13/2007

Article

The Pants Judge may be off the hook.In a surprise turn, the dry cleaners sued by Administrative Law Judge Roy Pearson today withdrew their demand for attorneys' fees, saying they had raised enough money to cover just about all of the legal bills...

12.WEEK IN REVIEW : Aug. 5-11

C04 (Post)

08/12/2007

Article

...than 1,500 arrests during the heightened patrols.The D.C. judge who sued his dry cleaner for $54 million over a pair of pants could be nearing the end of his tenure on the bench.A city commission has voted to formally notify Administrative Law Judge Roy Pearson that he may not be reappointed. The Commission on Selection and Tenure of Administrative Law Judges sent him a letter...

13.Judge Tries to Avoid Paying Legal Bills Of Cleaners He Sued Over Missing Pants

Henri E. Cauvin, B04 (Post)

Thanks: Pamela Gregory

Court Overturns Conviction Because of New DNA Evidence

Division III granted the personal restraint petition of a Yakima man convicted of rape and burglary in 1996. DNA analysis that was not available at the time is persuasive evidence that would likely have changed the jury's verdict. The petitioner, Ted Bradford, has already served his sentence, but he wants to clear his name and remove the obligation to register as a sex offender. DNA evidence overturns Yakima man's rape conviction, Seattle Times, Aug. 15, 2007.

The case is In re the Personal Restraint Petition of Bradford, No. 24448-2-III, Wash. Courts (Aug. 14, 2007).

Mr. Bradford was represented by the Innocence Project Northwest. Prof. Jackie McMurtrie and Trial Ad instructor Felix G. Luna were counsel of record.

Effect of Voluntary Dismissal

In a procedurally tangled case, the Washington Supreme Court upholds dismissal under CR 41(a)(4). Feature Realty, Inc. v. Kirkpatrick & Lockhart Preston Gates Ellis, No. 79967-9 Wash. Courts website (Aug. 9, 2007).

Feature Realty sued Spokane over a delay in a permit request. The trial court granted summary judgment, but the Supreme Court reversed. For the second go-round, Feature hired Jerry Neal (a partner in Preston Gates & Ellis) and a California attorney named Terrence Butler. They reached a settlement -- but the city backed out because the settlement had violated the Open Public Meetings Act. Feature went to federal court, but E.D. Wash. and the 9th Cir. agreed that the settlement was void.

So Feature sued Neal, Butler, and Neal's law firm for malpractice -- in California. Since the underlying representation was in Washington, the firm moved to stay the complaint based on forum non conveniens and Neal moved to quash the subpoena for lack of personal jurisdiction. Feature tried to keep alive its suit against Butler (the California lawyer) in California, but the California court said huh-uh, so Feature filed in King County and voluntarily dismissed its California suit.

But Feature hadn't timely served the defendants. So it requested dismissal and refiled in King County. The defendants won a motion to have the case transferred to Spokane. And then they moved for summary judgment and won based on CR 41(a)(4):

Unless otherwise stated in the order of dismissal, the [voluntary] dismissal is without prejudice, except that an order of dismissal operates as an adjudication upon the merits when obtained by a plaintiff who has once dismissed an action based on or including the same claim in any court of the United States or of any state.

In other words, you get one voluntary dismissal free, but the second one counts. One issue on appeal is whether the California appeal should count.

And you thought Civil Procedure was over after your 1L year!

Decision Making in the U.S. Courts of Appeals - Frank B. Cross

Here's a new book for people trying to understand how the courts do what they do: Frank B. Cross, Decision Making in the U.S. Courts of Appeals (KF8990 .C76 2007 at Classified Stacks).

This groundbreaking book analyzes the decisions made by the United States circuit courts over the past half century. These courts have a profound impact on the law—they issue many more decisions in many more areas of law than the Supreme Court. Cross demonstrates that while the courts' judges are influenced by ideology and by the appointing president, legal requirements exercise a much stronger influence on their decisions. He also shows that these courts are independent of the other branches of government and free from undue influence of various parties. The book further introduces new research on the precedent-setting power of decisions.

Publisher's description.

Statutory Construction: Crimes Against Persons

The Washington Supreme Court unanimously construes sections of the Sentencing Reform Act to find that community custody is not mandated for an attempted assault. In re Postsentence Review of Leach, No. 79432-4, Wash. Courts website (Aug. 2, 2007).

RCW 9.94A.715 provides:

(1) When a court sentences a person to the custody of the department for * * * any crime against persons under RCW 9.94A.411(2) * * * , the court shall in addition to the other terms of the sentence, sentence the offender to community custody * * *

Flip the pages back to 9.94A.411, and you find:

(2) Decision to prosecute.

(a) STANDARD:

Crimes against persons will be filed if * * *

Crimes against property/other crimes will be filed if * * *

See table below for the crimes within these categories.

The table lists lots of crimes against persons, but none of them are attempt crimes.

Leach hit her 12-year-old son with a tire iron, and she pleaded guilty to attempted assault of a child in the second degree. She was sentenced to 23.25 months confinement followed by 9-18 months community custody.

The Department of Corrections said that she couldn't be placed in community custody because her crime wasn't in the statutory list. The Attorney General argued that result would be absurd. And, on the facts, it sure does seem nutty that bloodying a boy with a tire iron doesn't count as a crime against a person, but some of the nuttiness comes from the plea: the facts would have supported a charge of assault, but the state accepted a plea of attempted assault.

It's all about reading the statute. The Court says that the legislature could have included attempt crimes in the list -- or it could have said that the list was merely illustrative -- but what it said was: these are the crimes that count as crimes against persons. The Court is there to apply the statute the legislature actually enacted and so, in this case, the defendant will not serve community custody after her confinement.

Evaluators in Family Cases

When there are disputes about child custody or visitation, the court often orders an evaluation of the parents by an expert. Stuart Greenberg, a psychologist who did a lot of evaluations (with high price tags), was recently discovered to have been videotaping women using the restroom in his office. He committed suicide shortly after his behavior was discovered. Now his recommendations are being questioned, and the P-I is taking a look at the system generally. Families' futures decided with little oversight, Seattle P-I, Aug. 8, 2007.

UW School of Law Affiliate Professor Andy Benjamin is quoted in the article. He is the coauthor of a text from the American Psychological Association describing best practices in family evaluations: G. Andrew H. Benjamin and Jackie K. Gollan, Family Evaluation in Custody Litigation: Reducing Risks of Ethical Infractions and Malpractice (KF505.5 .B46 2003 at Classified Stacks). The APA's description of the book is here.

State standards for parenting evaluations are in WAC 246-924-445. The regulation was adopted June 7, effective July 7.

Thanks: Lisa Kremer.

A Nebraska judge bans the word rape from his courtroom

Dahlia Lithwick has fascinating commentary about language battles in a sexual assault case. A Nebraska judge bans the word rape from his courtroom, Slate.com, June 20, 2007.

The defense successfully moved to bar witnesses from saying "rape," "sexual assault," "victim," and "sexual assault kit." The concern is that "rape" is so inflammatory that jurors would make their decision based on emotion rather than reason. But the victim is left having to describe what she experienced as a rape as "intercourse" or "sex."

The jury deadlocked in the first trial.

The case went to trial again in July, but the judge (Lancaster County District Judge Jeffre Cheuvront) declared a mistrial because of high publicity, including a protest of the language ruling by rape victim advocates. Safi mistrial raises questions about costs, Lincoln Journal Star, July 14, 2007.

See also Putting the Term "Rape" on Trial, Time, July 23, 2007.

To Punish Thai Police, a Hello Kitty Armband

How do you discourage police from tardiness, littering, and other minor infractions? To Punish Thai Police, a Hello Kitty Armband, N.Y. Times, Aug. 7, 2007.

"Simple warnings no longer work," said Pongpat Chayaphan, acting chief of the Crime Suppression Division in Bangkok, who instituted the new humiliation this week.

"This new twist is expected to make them feel guilt and shame and prevent them from repeating the offense, no matter how minor," he said. “Kitty is a cute icon for young girls. It’s not something macho police officers want covering their biceps."

If I were posting this over on Bent Law, Peter Nicolas's new blog about gay rights and the law, I might riff on why the color pink and cute kittens should be so profoundly shaming to men (the article doesn't mention any women on the Thai police force). Here, I'll just breathe a sigh of relief that this campaign is just part of cleaning up the force:

Pink armbands for misdemeanors are a start. Stronger measures could be next for corruption and extrajudicial killings.

Extrajudicial killings: now those would take something a little stronger than a white kitten with wideset eyes.

Wonder if this will be added to Hello Kitty's profile?

Thanks: Michele Storms.

Lewis Co. Prosecutor Issues

Lewis County (Centralia) Prosecutor Michael Golden had a sexual relationship with a woman whose son was charged with arson. He says the relationship ended when the boy was arrested; she says they had detailed conversations about the son's case and defense strategy. After the son pleaded guilty, the mother told the defense attorney about the relationship, and he moved for the case to be dismissed and the Prosecutor's Office to be disqualified from the case. The two superior court judges in the county removed themselves from the case, and Chief Justice Alexander has appointed Judge Gary Tabor (Thurston County) to hear the case. Lewis County judges remove themselves from prosecutor case, Seattle Times, Aug. 7, 2007.

Prosecutor Candidates' Websites

In case you're looking for information about the three candidates for King County Prosecutor, here are their websites:

• Dan Satterberg (R)
• Keith Scully (D)
• Bill Sherman (D)

(I hadn't noticed that their names all started with "S" until I decided to list them alphabetically.)

I indicated their parties just because that's the way it's set up. I'm not sure that Prosecutor should be a partisan position. We vote for King County Sheriff and King County Superior Court judges without knowing party affiliations -- why not the Prosecutor? Able administration and commitment to justice aren't R or D (or in the color coding that became popular after the 2000 election, red or blue). I asked about this at the forum this afternoon. Both Bill Sherman and Keith Scully said they supported the office being nonpartisan.

But now the candidates run by party. So on Aug. 21, Democrats can vote for either Sherman or Scully and Republicans can vote for Satterberg. Candidates in the primary -- for both county-wide and city races -- are listed here, in an online voters' pamphlet.

Prosecuting Atty Candidate Forum

This afternoon at 4:00 candidates for King County Prosecutor will appear at a forum "Co-sponsored by the Asian Bar Association of Washington, King County Washington Women Lawyers, Korean Bar Association of Washington, Latina/o Bar Association of Washington, the Northwest Indian Bar Association, * * * the South Asian Bar Association of Washington, and Vietnamese Bar Association of Washington." Announcement from Washington Women Lawyers, July 31, 2007.

Tues. Aug. 7
4:00-6:00
Gates Hall Room 138
free

(This is the information I've been able to gather about the forum. It is in the law school's room reservation calendar, but I haven't seen flyers. The only event Dan Satterberg's website lists for today is a dinner at 6:00. Then again, Keith Scully's website has nothing on the calendar for August and Bill Sherman's website has no calendar. This forum -- if it's really a go -- is definitely under publicized.)

Update (5:35): I'm sitting in the forum as it winds down. Keith Scully and Bill Sherman both came. With about a dozen people in the audience, they engaged in a good discussion (somewhat more casual than it would have been with a packed room) of a wide variety of issues -- juvenile justice, case management, areas for reform, and others.

Podcast on Avvo

This Week in Law discusses Avvo, the Seattle-based company that rates lawyers, in its latest episode. (Hat tip: Internet Legal Research Weekly.)

Avvo's blog (Avvoblog, aptly enough) has notes about the company and related topics, such as lawyer advertising. Avvo's motion to dismiss the class action complaint filed against it (W.D. Wash.) is here (June 28, 2007). The first page of the motion indicated it was on the motion calendar for July 20. I don't know what, if anything, has happened with the case since then.

Selective Prosecution - NYT on DOJ

The New York Times opines:

One part of the Justice Department mess that requires more scrutiny is the growing evidence that the department may have singled out people for criminal prosecution to help Republicans win elections. The House Judiciary Committee has begun investigating several cases that raise serious questions. The panel should determine what role politics played in all of them.

Selective Prosecution, N.Y. Times, Aug. 6, 2007.

Thanks: Maureen Howard.

U.S. Marshals Let Fugitives Come to Them, in Church - New York Times

U.S. Marshals Let Fugitives Come to Them, in Church, New York Times, Aug. 5, 2007.

The U.S. Marshals Service has run this program -- "Fugitive Safe Surrender" -- in five cities so far, cooperating with local law enforcement and courts. Many people who are fugitives have fairly minor offenses, compounded by missed court dates, and are relieved to work out deals.

Thanks: Maureen Howard.

Cops DUI Exposé

The P-I launched a three-day investigative series ("Undue Influence") on law enforcement officers who drive drunk and often receive very light discipline. The lead story was A broken system works in favor of cops busted for DUI, Seattle P-I, Aug.6, 2007.

Pants Suit Judge Might Lose Job

Remember the DC Administrative Law Judge who sued a dry cleaners for millions of dollars because of a mixup with his pants? I haven't covered it since my first post, but it's gotten a lot of attention elsewhere as an example of litigiousness run amok.

The trial court ruled for the cleaners, but the judge is planning to appeal. A fundraiser last week garnered $62,000 for Chungs, the couple that owns the dry cleaners -- with $30,000 donated earlier, they're almost out of the hole, but an appeal would cost more.

Now the Commission on Selection and Tenure of Administrative Law Judges is deciding whether to recommend his reappointment (his first term expired recently). Raw Fisherfrom Marc Fisher's Blog - Commission Weighs Future of Litigious Judge, Wash. Post, Aug. 3, 2007.

Thanks: Pamela Gregory.

Summary Judgment Unconstitutional?

Suja A. Thomas, Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007):

The Essay concludes that, despite the uniform acceptance of the device, summary judgment is unconstitutional. The Essay then responds to likely objections, including that the federal courts cannot function properly without summary judgment. By describing the burden that the procedure of summary judgment imposes upon litigants and the courts, the Essay argues that summary judgment is not necessary to the judicial system but rather, by contrast, imposes significant costs upon the system.

Bell Atlantic Commentary

"Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 Va. L. Rev. In Brief 121 (2007), html, pdf looks at the recent U.S. Supreme Court case on how much a complaint needs to have in order to survive a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

Corp's Waiver of Atty-Client Privilege

George M. Cohen, Of Coerced Waiver, Government Leverage, and Corporate Loyalty: The Holder, Thompson, and McNulty Memos and Their Critics, 93 Va. L. Rev. In Brief 137 (2007), html, pdf, examines the flap about the McNulty Memo (and its predecessors) and concludes that the "coercion" involved in requiring corporations to waive privilege in order to be seen as "cooperating" with an investigation is just not a big deal.

Cohen's concluding paragraph:

The vehemence of corporate opposition to the government’s waiver policy may be a matter of whose ox is being gored. It is one thing when the corporation on its own wants to finger some low-level employee and label him a “bad egg” acting contrary to company policy so that the corporation can avoid prosecution. It is quite another when internal investigations turn up evidence of misbehavior at the highest levels and diffused throughout the organization. But that is what the recent corporate scandals are all about. The “coercion” that corporations claim to suffer may in fact be the discomfort that upper-level executives feel when they have to choose between waiving the privilege for the good of the company and saving their own necks. If so, then criticism that has been dressed up as a noble stand in defending a venerable privilege against government abuse is in reality just the corporate bar’s age-old attempt to protect upper-level corporate management rather than the entity client that corporate lawyers are supposed to serve. That would not be a surprise. The surprise is that people have been taken in for so long.

Split DOJ?

In Opinion | Split the Justice Department to keep politics, prosecution separate, Seattle Times, Aug. 1, 2007, UW affiliate professor Hugh D. Spitzer suggests that Congress could create one agency to be the public prosecutor for the federal government and another to be the President's advisers. He talks about a green paper proposing a similar solution int he UK.

Meth Podcast

I just listened to the podcast of Justice Talking's episode, "Is Crystal Meth the New Crack? (released Nov. 20, 2006). A summary of the different segments is on the show's webpage, so you don't have to commit to the whole program (but I thought the whole thing was interesting).

Methamphetamine has a wide impact: health, violence, identity theft, ordinary theft, children in foster care (someone cited an amazingly high percentage of cases where a parent was a meth user).

In one segment, two speakers debated whether meth is a national epidemic. Joe Dunn, the legislative director from the National Association of Counties (NACo) said yes. Ryan King, a policy analyst for the Sentencing Project said that characterizing it that way skews national drug policy.

Mr. King is the author of The Next Big Thing? Methamphetamine in the United States (June 2006). NACo has a Meth Action Clearinghouse.

Studies of Plaintiffs' Bar

The New York Law School Law Review (v.51 n.2, 2006-07) has a symposium looking at the plaintiffs' bar, sponsored by the NYLS Center of Professional Values and Practice:

• Introduction . . . Anita Bernstein, Marc Galanter & Tanina Rostain


• How Social Hierarchies Within the Personal Injury Bar Affect Case Screening Decisions . . . Mary Nell Trautner


• How the Spider Catches the Fly: Referral Networks in the Plaintiffs' Personal Injury Bar . . . Sara Parikh


• Texas Plaintiffs' Practice in the Age of Tort Reform: Survival of the Fittest – It's Even More True Now . . . Stephen Daniels & Joanne Martin


• Blame it on the Bee Gees: The Attack on Trial Lawyers and Civil Justice . . . Robert S. Peck & John Vail


• How the Plaintiffs' Bar Bars Plaintiffs . . . Richard L. Abel

Name-Calling in Closing Argument

See Janelle L. Davis, Comment, Sticks and Stones May Break My Bones, But Names Could Get Me a Mistrial: An Examination of Name-Calling in Closing Argument in Civil Cases, 42 Gonz. L. Rev. 133-171 (2006-2007), Westlaw, LexisNexis.

An introductory section (at 136-42) offers a good overview of the law of closing argument -- advocates may not: interject their personal beliefs, refer to inadmissible evidence, invite the jury to speculate on missing evidence, misstate the law, make Golden Rule arguments, argue for jury nullification, appeal to passion and prejudice. And of course, this last -- appealing to passion and prejudice is where name-calling comes in, and that's the rest of the comment. Ms. Davis reviews cases from around the country and considers the applicable Model Rules of Professional Conduct.

Hot Symposia at Loyola

Loyola of Los Angeles Law Review has had some interesting symposia lately, and the articles are available in pdf on the web:

• Access To Justice: the Economics of Civil Justice, v.39 n.2, Aug. 2006. Includes:
  • Medical Malpractice Myths and Realities: Why an Insurance Crisis is Not a Lawsuit Crisis by Douglas A. Kysar, Thomas O. McGarity & Karen Sokol
  • Tort Reform--What About the Little Guy? by Dawn House
  • The Politics of Criticizing Judges by Anthony Champagne
• Developments in the Law: the Class Action Fairness Act of 2005 , v.39 n.3, Sept. 2006.
• Celebrity Prosecutions, v. 39 n.4, Dec. 2006.

Prison Nation

Last night in my car I caught part of a broadcast on KUOW:

Sasha Abramsky on the 'Age of Mass Imprisonment'

Sasha Abramsky says America is a prison nation. His third book on the United States' criminal justice system takes an investigative look at prisons. He says most people don't think of prisons when they think about the American story, but, in fact, thanks to twenty–five years of policy changes, prisons are our story. Abramsky follows up Conned and Hard Time Blues with American Furies: Crime, Punishment, and Vengeance in the Age of Mass Imprisonment. Abramsky spoke at Elliott Bay Book Company in Seattle on June 7th, 2007.

KUOW Speakers Forum archive. Abramsky's website is here.

Very interesting -- worth a listen or a read, I think.

Wales Murder in New Yorker

Jeffrey Toobin reports on the murder of Seattle Assistant U.S. Attorney Tom Wales in 2001: A Reporter at Large: An Unsolved Killing, New Yorker, Aug. 6, 2007. The subtitle asks: "What does the firing of a U.S. Attorney have to do with murder case?"

Ledbetter Bill Passes House

Congress is trying to undo the impact of Ledbetter v. Goodyear Tire & Rubber Co., the recent Supreme Court case limiting the right to sue to discriminatory acts within 180 days, regardless of when the plaintiff discovered the discrimination, the effects of which linger on in lower paychecks month after month (earlier post). Ledbetter Bill Passes House, Leadership Conference on Civil Rights press release, July 31.

The House bill is the Lill Ledbetter Fair Pay Act of 2007, H.R. 2831. The Senate bill is the Fair Pay Restoration Act, S. 1843.

Justice in Mississippi

In Justice in Mississippi: The Murder Trial of Edgar Ray Killen (KF224.K55 B35 2006 at Good Reads), Howard Ball tells the story of the recent trial for the killings of civil rights workers in the 1960s. Here's the publisher's decription:

The slaying of three civil rights workers in Philadelphia, Mississippi, in 1964 was a notorious event documented in Howard Ball’s 2004 book Murder in Mississippi. Now Ball revisits that grisly crime to tell how, four decades later, justice finally came to Philadelphia.

Originally tried in 1967, Baptist minister and Klansman Edgar Ray Killen was set free because one juror couldn’t bring herself to convict a preacher. Now Ball tells how progressive-minded state officials finally re-opened the case and, forty years after the fact, enabled Mississippians to reconcile with their tragic past.

The second trial of 80-year-old “Preacher” Killen, who was convicted by a unanimous jury, took place in June 2005, with the verdict delivered on the forty-first anniversary of the crime. Ball, himself a former civil rights activist, attended the trial and interviewed most of the participants, as well as local citizens and journalists covering the proceedings.

Ball retraces the cycle of events that led to the resurrection of this “cold case,” from the attention generated by the film Mississippi Burning to a new state attorney general’s quest for closure. He reviews the strategies of the prosecution and defense and examines the evidence introduced at the trial—as well as evidence that could not be presented—and also relates first-hand accounts of the proceedings, including his unnerving staring contest with Killen himself from only ten feet away.

Ball explores the legal, social, political, and pseudo-religious roots of the crime, including the culture of impunity that shielded from prosecution whites who killed blacks or “outside agitators.” He also assesses the transformation in Mississippi’s life and politics that allowed such a case to be tried after so long. Indeed, the trial itself was a major catalytic force for change in Mississippi, enabling Mississippians to convey a much more positive national image for their state.

Ball’s gripping account illuminates all of this and shows that, despite racism’s long stranglehold on the Deep South, redemption is not beyond the grasp of those who envision a more just society.

Murder in Mississippi is at KF224.M47 B35 2004 at Classified Stacks.

State crime lab manager resigns, DUI cases in question

State crime lab manager resigns, DUI cases in question:

Accusations against the former manager of the Washington State Patrol's toxicology laboratory could leave hundreds of drunken driving cases and some drug cases in question, lawyers say.

The manager, Ann Marie Gordon, resigned July 20 after the patrol began investigating an anonymous tip that she failed to check a solution as required before signing sworn statements that breath test machines were functioning properly.

Crime lab officials say that there are redundant checks, so one person's lapse does not invalidate the tests. However,

"I think this is an issue for every DUI case currently pending in this state," said Francisco A. Duarte, a lawyer in Bellevue. "Every single machine in the state of Washington relies on the solution prepared by the Washington state toxicology lab."

Mr. Duarte is a Trial Ad instructor at the UW.