Calculating Time Under the Federal Rules

Kiowa Anko calendar on buckskin, ca. 1871 - ca. 1907 (Smithsonian Institution, Bureau of American Ethnology. National Archives ARC identifier 523631.)


Prof. Catherine Struve (University of Pennsylvania) sent this message to a list for Civil Procedure professors. With her permission, I'm posting it here:

I write to invite you to participate in the public-comment process for the many rules of procedure that were published for comment last August.

As you know, proposed amendments to the Appellate, Bankruptcy, Civil and Criminal Rules were published for comment in August, and comments on those proposals are due by February 15. One set of proposals concerns the method for computing time under all those sets of rules, and as the reporter to the subcommittee that coordinates the time-computation project I wanted to make sure to draw those proposals to your attention. A full explanation of the proposals can be found at http://www.uscourts.gov/rules/newrules1.htm (scroll down to the bottom of the page).

In brief, the principal time-computation proposal is to adopt a “days-are-days” approach to computing all periods of time, including short time periods. Under the current rules, intermediate weekends and holidays are omitted when computing short time periods but included when computing longer periods. By contrast, under the new proposal, intermediate weekends and holidays are counted no matter the length of the specified period.

The project has been published for comment as proposed amendments to Appellate Rule 26(a), Bankruptcy Rule 9006(a), Civil Rule 6(a), and Criminal Rule 45(a). Also published for comment are proposed amendments to numerous deadlines set by the Appellate, Bankruptcy, Civil and Criminal Rules; the goal of those amendments is to offset the effect of the change in time-counting approach by lengthening most short rule-based deadlines. In large measure, the rules-provided deadlines have been sufficiently lengthened to make the change to a days-are-days approach neutral to practitioners; moreover, in a few notable instances – such as the proposal to lengthen the current 10-day deadlines in Civil Rules 50, 52, and 59(b), (d) and (e) to 30 days – the deadlines proposals will give practitioners significantly more time than they now have. The new time-computation rules will govern a number of statutory deadlines that do not themselves provide a method for computing time, and so one of the project's current goals is to identify key statutory deadlines that the Standing Committee should recommend that Congress lengthen in order to offset the change in time-computation approach.

Your comments on any and all aspects of these proposals would be appreciated. Comments can be submitted electronically to Rules_Comments[at]ao.uscourts.gov .

Thanks in advance for your input!

Nickels backs police panel's 29 reforms

Nickels backs police panel's 29 reforms, Seattle P-I, Jan. 29, 2008. (I think this will be in tomorrow's print paper; it's on the website this evening.)

And, speaking of police, see this morning's long front-page story, Lewis Kamb & Eric Nalder, Cops who lie don't always lose jobs: P-I review finds 2 dozen cases where officers weren't fired, Seattle P-I, Jan. 29, 2008.

Duke prosecutor removed from lawsuit

Duke prosecutor removed from lawsuit, Seattle P-I, Jan. 29, 2008.

Attorneys for players Reade Seligmann, Collin Finnerty and Dave Evans later sued Nifong, the city of Durham, police investigators and others. The suit accuses them of conducting "one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history."

The article doesn't explain why prosecutor Nifong was removed from the suit, but it says that the suit is the chief reason for his recent bankruptcy filing.

Influences on Jurors in Med Mal Cases

What factors influence jurors' decisions in medical malpractice cases? Writing in the Journal of the American Academy of Orthopaedic Surgeons (a magazine you don't see in the grocery check-out line), a member of Harvard's Trial Ad faculty summarizes the research. Linda S. Crawford, Why Winners Win: Decision Making in Medical Malpractice Cases, J Am Acad Orthop Surg. vol. 15 Suppl 1:S70-4 (2007).

She organizes the article around four questions jurors ask: Whom can I trust in this lawsuit? (This includes comments about attorneys, experts, and the plaintiff.) If I were in a medical crisis, would I be in safe hands with this physician? In the circumstances, did the physician do the best he or she could? Did he or she make the right medical decision?

Summary

Juries make their decisions first and foremost based on their evaluation
of the individual before them. Issues of character trump all other presumptions.
Presuming the medicine is sound, the physician who passes the character test will be given the benefit of the doubt on his or her medicine. The challenge is to be that person of character in the often difficult, hostile environment of the courtroom.

Russell sentenced to 14 years

In 2001 Frederick Russell's SUV hit a car with 7 WSU students, killing 3 and seriously injuring 3. He only this fall was tried, because he left the country and lived in Ireland until he was found and extradited. Frederick Russell was convicted of vehicular homicide Nov. 6 and sentenced Jan. 2. Russell sentenced to 14 years, Spokesman Review, Jan. 3, 2008.

Tossing away a prepared statement, Russell took a deep breath, fingered a black rosary with a silver cross provided by a former employer who had spoken on his behalf, and said, “I’m sorry. You waited too long to hear that.”

Russell is represented by Franscisco Duarte, who is also a UW Trial Ad instructor.

3 sue state over access to records

3 sue state over access to records, Seattle Times, Jan. 11, 2008:

Two women and a teenage girl who say they were abused by a foster father [Enrique Fabregas] filed suit Thursday claiming the state improperly withheld records related to their case.

The plaintiffs are represented by former Trial Ad instructor David Moody.

Symphony violinist's lawsuit dismissed

You don't often have litigation covered by a newspaper's music critic, but here's a story: Melissa Bargreen, Symphony violinist's lawsuit dismissed, Seattle Times, Jan. 25, 2008.

Violinist Peter Kaman's personal-injury lawsuit against the Seattle Symphony was dismissed this morning in King County Superior Court, but Kaman isn't done fighting: "This case isn't over until the fat lady sings," he said following the ruling.

The Seattle Symphony violinist plans to appeal Judge Catherine Shaffer's dismissal of his discrimination suit. The lawsuit originally presented two claims of discrimination and one claim alleging "outrage," or "the intentional infliction of emotional distress," according to Kaman's attorney, Brenda Little. The two discrimination claims were dismissed last November; the third claim was dismissed Friday.

The ruling turned on the statute of limitations. Over the violinist's 20+ years with the symphony, he experienced treatment amounting to the tort of outrage, Judge Shaffer said, but not within the three year statute of limitations. See also Melinda Bargreen, Symphony player loses ruling, gains confidence, Seattle Times, Jan. 26, 2008.

Judge Shaffer is a UW Trial Ad instructor.

Photo: Violins by Amati, Stradivari, and Guarneri, from the Library of Congress's violin collection. Library of Congress Information Bulletin, Feb. 1999.

Man Charged in Stabbing Murder on Capitol Hill New Year's Eve

Suspect in stabbing faces murder charge, Seattle Times, Jan. 27, 2008.

James Anthony Williams will be charged Tuesday with the first-degree murder of a 31-year-old Sierra Club worker outside her condominium on New Year's Eve, the King County Prosecuting Attorney's Office announced Saturday.

Authorities said Williams, 48, said he stabbed Shannon Harps.

Williams has a history of violence and has been diagnosed with paranoid schizophrenia.

But Senior Deputy Prosecutor Scott O'Toole said his office has concluded "he is competent" to stand trial for the death of Harps, based on Williams' interviews with authorities and his demeanor.

Scott O'Toole is a UW Trial Ad instructor.

$1K Offered for Best Work/Life Essay, $5K for Legal Profession Essay

I came across this and I thought I'd flag it for prospective essayists out there: $1K Offered for Best Work/Life Essay, $5K for Legal Profession Essay | ABA Journal - Law News Now. Deadlines are Feb. 29 (for the work-life contest) and March 3 (for the legal profession contest).

Blogs, Blogs, Blogs

Do you want to learn more about blogs?

I've updated our library's guide, Blogs & RSS Feeds. It gives you links to directories of law-related blogs, information about using RSS feeds and feed readers, and tips for starting a blog of your own.

I've also posted a new guide listing several dozen law-related blogs by bloggers in Washington State (and one from Vancouver, BC). Check them out -- there might be something there for you, whether you want to follow criminal law, construction law, or Internet law.

Thanks to Seattle Trademark Lawyer, whose blogroll got my list started.

Intro to E-Discovery for Judges

The Federal Judicial Center has an e-discovery guide for judge on its website: Managing Discovery of Electronic Information: A Pocket Guide for Judges (2007). One of the authors is Judge Barbara J. Rothstein (W.D. Wash.), who has been the director of the Federal Judicial Center since 2003.

Thanks: Digestible Law (Perkins Coie).

The Criminal Jury: Whose Right Is It Anyway?

The Sixth Amendment guarantees criminal defendants the right to a jury trial. We're used to thinking of this as an individual right, but Prof. Laura Appleman (Willamette Law) uses historical sources to show that colonial Americans thought of the right as largely a community right -- the people of the community had a right to be represented on a jury that would decide guilt and determine the sentence. This is more than an interesting historical byway, since the Supreme Court had evoked the history of the Sixth Amendment in its decisions (Apprendi, Blakely) requiring juries to find the facts used in sentencing.

Laura I Appleman, The Lost Meaning of the Jury Trial Right, working draft (January 17, 2008), available at SSRN: http://ssrn.com/abstract=1084960.

If the right is not just the defendant's, we have to wonder how the defendant can waive a jury trial. We take bench trials and plea bargains for granted now, but I was surprised to read that some state supreme courts held that guilty verdicts were unconstitutional because they removed the community's right to decide guilt and punishment. Id. at 49.

Graphic: John Adams (one of the authorities quoted in Appleman's article), from White House Kids.

Judge Coughenour Not Accepting New Trademark Cases

Michael Atkins at Seattle Trademark Lawyer reports that Judge Coughenour isn't accepting trademark cases when they're assigned to him. Since he's on senior status, he can have more control over his docket apparently. Judge Coughenour Not Accepting New Trademark Cases, Jan. 17, 2008.

Electronic Evidence and Discovery Handbook

I just listened to a podcast interview with two of the authors of The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines, published by the ABA.

Asked what sets this book apart from other books on e-discovery, Sharon Nelson said: forms. She quoted a friend as saying that all lawyers want two things: forms and a continuance. This book has 60 forms (and a CD-ROM to make them easy to work with).

For more about the book, see the publisher's description (the publisher is the ABA) or take a look at it in the library (KF8947 .N45 2006 at Classified Stacks).

Should Judges Do Outside Research for Science Questions?

How should judges deal with scientific evidence? Prof. Edward K. Cheng says that one way to improve decisionmaking is for them to do library (or online) research themselves. Judges are divided on the question. In a survey Cheng conducted, some said that outside research was highly desirable and others said it was highly undesirable.

This Article has argued that independent research is both desirable and permissible. Indeed, independent research carries great promise as a tool for helping judges decide Daubert questions and for improving scientific decisionmaking in the courts generally. Furthermore, although ultimately ambiguous, current rules seem to allow sufficient leeway to permit the practice. But ultimately, whether one agrees with its position or not, this Article’s true purpose is a broader one, and that is to spark greater academic and judicial commentary on the issue of independent research and the various ways to help judges make scientific admissibility decisions.

Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 Duke L.J. 1263, 1315 (2007), available here.

Professionals on juries

It used to be common for states to exempt professionals -- doctors, lawyers, clergy, enineers -- from jury service. Now it is common to have them on juries. It's perceived as fair in some ways: everyone has to serve, and juries are more representative. But there's a risk that a professional will sway fellow jurors during deliberations, bringing in outside knowledge -- in effect, giving testimony that is not susceptible to cross-examination or refutation during argument.

For a discussion, see Michael B. Mushlin, Bound and Gagged: The Peculiar Predicament of Professional Jurors, 25 Yale L. & Pol'y Rev. 239 (2007). Prof. Mushlin presents results of a survey of jury consultants, who report that they often see cases where a professional on the jury makes a difference.

He proposes increased challenges for cause -- e.g., if an engineer is in the jury pool for a case involving bridge construction. But, once a professional is on the jury, he proposes that they not be given special instructions not to use their expertise. Restrictive instructions unduly interfere with the deliberative process, he says.

Cause of Action for Pet Death?

A bill (HB 2945) was introduced yesterday that would provide a private cause of action for the wrongful death or injury of a companion animal. It would add companion animals to RCW 4.24.320, which provides a cause of action (with treble damages) for injuries to livestock.

Photo credit: mah.

When Business Steals Amateurs' Photos

Some big businesses have lifted photos from Flickr and blogs to use in their advertising. And some of the photographers and their subjects are not flattered -- in fact, some have sued. Search Help! I've been photonapped by Big Business!, Seattle Times, Jan. 16, 2008 (story from Wash. Post).

McIver's domestic-violence case dropped

McIver's domestic-violence case dropped, Seattle Times, Jan. 16, 2008:

Faced with the prospect of going to trial today with little evidence and without the cooperation of the alleged victim, King County prosecutors on Tuesday dropped the domestic-violence case against Seattle City Councilmember Richard McIver.

See also McIver assault charge dropped, Seattle P-I, Jan. 16, 2008. The P-I quotes "David Allen, one of two attorneys representing McIver." I believe the other lawyer is Allen's partner and UW Trial Ad instructor Todd Maybrown.

Federal Prosecutors, Corporations, and "Monitors"

Yesterday's Washington Post had a front-page story about the use of "monitorships" by federal prosecutors. Ex-Officials Benefit From Corporate Cleanup, Wash. Post, Jan. 15, 2008.

Here's the basic model: a company seems to have engaged in shady practices. The U.S. Attorney's office investigates. At some point, instead of further investigation leading to a possible indictment, the prosecutors work out a deal with the company that the company will pay a a consultant (chosen by the prosecutors) to come inside the company and shake things up.

The lucrative arrangements are known as "monitorships," unusual contracts in which an outsider comes into a troubled company with vast power to expose corruption and change business practices. The deals allow scandal-plagued companies to avoid criminal charges -- and they give prosecutors a way to ensure businesses keep their promises and clean up abuses. But legal experts and lawmakers are expressing growing concern about inconsistency and secrecy surrounding the appointments.

The monitors hired -- with big pricetags -- are often former government officials (e.g., former Attorney General John Ashcroft), and there's no competitive bidding process.

I heard about this in a commentary by NPR analyst Daniel Schorr tonight: 'Monitorships' Smack of Favoritism for Bush Cronies, All Things Considered, Jan. 16, 2008.

Court Upholds NY Judicial Elections

Court Upholds NY Judicial Elections, Wash. Post, Jan. 16, 2008. New York voters elect delegates to a party convention. The delegates select judicial candidates. Unsuccessful candidates and a watchdog group challenged the system. "The plaintiffs have said the current system leads to cozy relationships among judges, lawyers and politicians." The district court and the Second Circuit found it unconstitutional. The Supreme Court today reversed.

The case is New York Board of Elections v. Torres, 06-766, supremecourtus.gov. The opinion was by Scalia. There were no dissents (although there were a couple of concurrences).

Federal Appellate Judges Specialize Some

The standard line is that most judges are generalists, handling any legal dispute that comes before them. Prof. Edward K. Cheng has tested that proposition by examining 10 years of decisions from the U.S. Courts of Appeals. Although panels are assigned randomly, it turns out that some judges tend to write more than their share of opinions in given areas. For example, if Judge A is in the majority in 30 unanimous 3-judge employment discrimination cases, you might expect A to write 10 of the opinions, but in practice A might have written 20.

Edward K. Cheng, The Myth of the Generalist Judge: An Empirical Study of Opinion Specialization in the Federal Courts of Appeals (working paper presented at Fordham Law School Jan. 3, 2008).

Is this a bad thing or a good thing? Prof. Cheng discusses possible implications. One obvious positive: greater expertise by the opinion writer might make for better opinions, prepared more efficiently. One possible negative: other judges might defer too much to the judge who seems to be expert and there might be some bias. To take one example, there are a number of judges who get assigned to more than their share of criminal law cases -- often judges who were prosecutors before being appointed to the bench. (Defense attorneys are much less often appointed.) Would former prosecutors have a bias toward the government position?

Seattle Law Blogger Meetup

Michale Atkins, the author of Seattle Trademark Lawyer, is hosting a get-together for local law bloggers this evening. Should be interesting. For more, see his his post from yesterday.

Maria Federici Profile

Anger, denial turn to hope nearly 4 years after tragedy, Seattle Times, Jan. 13, 2008:

It's been nearly four years since a board flew off a rented trailer on Interstate 405, smashed through the windshield of [Maria] Federici's Jeep and sheared off much of her face.

Since then, Federici has undergone seven reconstructive surgeries, had a state law making it a crime not to secure loads named in her honor and won a $15.5 million court judgment against U-Haul and the man who failed to tie down the load that struck her car.

She has yet to receive any money because U-Haul has appealed November's jury verdict. But her lawyers expect she will eventually receive enough money to pay her living expenses and medical bills for the rest of her life.

See earlier post (May 23, 2007).

Judge's strict no-hat rule upsets cancer patient

Judge's strict no-hat rule upsets cancer patient, Seattle Times, Jan. 13, 2008 (story from Tri-City Herald). The court is in Benton County.

King County judges get high marks

King County judges get high marks:

Most King County Superior Court judges are doing their jobs skillfully, respectively and impartially, according to the most comprehensive survey ever of attorneys who practice before them.

The results of the survey, conducted by the King County Bar Association and released this week, show that, overall, judges received positive ratings about 90 percent of the time.

The study is the King County Bar Association's 2007 Judicial Evaluation Survey. The report is richly detailed, with over 200 pages of appendix.

New DNA Methods Could Throw More Convictions Into Doubt (Seattle Weekly)

Check out the big story in this week's Weekly on DNA exonerations and the state's resistance to some convicts' requests for testing: Rick Anderson, News: New DNA Methods Could Throw More Convictions Into Doubt, Seattle Weekly, Jan. 9, 2008.

Prominent in the article is the UW's Innocence Project Northwest.

The cases discussed are

• In re Bradford, 140 Wash.App. 124, 165 P.3d 31, Findlaw (Div. III 2007).
• Riofta v. State, 134 Wash.App. 669, 142 P.3d 193, Findlaw (Div. II 2006), review granted, 161 Wash.2d 1001, 166 P.3d 718 (Sept. 5, 2007), argued October 23. Watch the oral argument (by Prof. Jackie McMurtrie for Riofta and alumna Michelle Luna-Green (Pierce County Prosecuting Attorney's Office) for the state) on TVW.

Football Fervor May Help Law Students

This morning's Seattle Times has a front-page story about pressure from booters to dismiss UW football coach Ty Willingham and athletic director Todd Turner. There was also some significant support. The story quotes from various email messages the newspaper got from the UW using a public records request.

One booster ("Ed Hansen — lawyer, multimillionaire, University of Washington alumnus and former three-term Everett mayor") pledged "100,000 towards a law school scholarship" conditioned on Willingham's termination and "a second $100,000" conditioned on Turner's termination. The UW decided to retain Willingham, but Turner is leaving at the end of this month. (President Emmert says he doesn't remember seeing the message. He also says he doesn't pay attention to financial threats or inducements tied to personnel decisions.)

Asked about his e-mail to Emmert, Hansen said he never expected it to become public. He said he offered the money because he wanted to help law students and get the football team back to winning.

Hansen said he believed there was nothing inappropriate about his e-mail: "If someone is willing to make a gift of money for a charitable purpose, they are entitled to put conditions on it. The UW is free to do what it will do, and Ed Hansen is free to make contributions to the UW if he likes the direction things are going."

Asked if he planned to donate $100,000 now that Turner has resigned, Hansen said he'd never considered the possibility that Willingham would stay and Turner be gone. "Your call is making me evaluate that," Hansen told a reporter. Later, Hansen said, "I think, as you and I are talking, I will go ahead with the $100,000 I mentioned."

Huskies booster offered $100K for coach's firing, Seattle Times, Jan. 10, 2008.

Influential State Supreme Courts -- We're Number 2!

A new law review article uses citation analysis to get a measure of the influence of state supreme courts. Jake Dear & Edward W. Jessen, “Followed Rates” and Leading State Cases, 1940-2005, 41 U.C. Davis L. Rev. 683 (2007).

The California Supreme Court has been seen as an influential court, both in studies and anecdotally. The authors sought to explore that claim, updating and refining the earlier studies. (Mr. Dear is the Chief Supervising Attorney for the California Supreme Court and Mr. Jessen is the Reporter of Decisions.)

With the help of LexisNexis (the owner of Shepard's Citations), they developed a database of cases that had not only been cited by other state courts but followed. Not surprisingly, California was consistently at the top of the list -- most cases that have been followed at least once, most cases that have been followed at least 3 times, most cases followed since 1986, etc.

A new result was that the Washington State Supreme Court was consistently in the number two slot. Older studies had placed New York, New Jersey, or other states higher, but with this data it was Washington. See note 87 of the article for a list of the six Washington cases that have been followed six times or more.

The authors say that the various state supreme courts typically have around the same number of full opinions. A difference, though, is the pool.

California’s highest court certainly has a large and rich inventory of cases from which to select — the court considers approximately 5400 petitions for review and 3000 requests for original writs annually....

Id. at 703. Washington, a much smaller state (both in area and population), had 1,576 cases in its pipeline, for which it selected for review and wrote full opinions in 124. Washington Courts, Supreme Court: Court Activity by Source of Review.

It's an interesting piece of work. The fact that our state shows up in all the graphs is an extra hook for readers from Washington.

Update (March 4): See Calif. up, N.Y. down in study gauging influence, Nat'l L.J., March 3, 2008. (I can't link to this article free.)

Teck Cominco -- Colville Tribe Can Sue Canadian Co.

A Canadian smelter released pollutants that were carried by the Columbia River into the U.S., past the Colville reservation. In 2004 tribal leaders sued the company for its failure to help pay for clean-up. The latest is that the Supreme Court had denied cert. (06-1188, Teck Cominco Metals, Ltd. v. Pakootas). U.S. high court declines to review Can. company pollution ruling, Seattle P-I, Jan. 7, 2008. Colville tribes can sue Canadian mining firm: Court upholds pollution ruling, Seattle P-I, Jan. 7, 2008.

Michael Robinson-Dorn, director of the UW's Berman Environmental Law Clinic, is quoted in U.S. Supreme Court expected to make decision on Teck Cominco case soon, Canadian Press, Dec. 30, 2007.

Feds open criminal inquiry into port

Feds open criminal inquiry into port, Seattle P-I, Jan. 7, 2008:

The U.S. Attorney for Western Washington is conducting a criminal investigation of the Port of Seattle based on a state performance audit of the port's construction management, which found the port wasted $97.2 million during contracts active from 2004 to 2007.

In a letter sent Friday to Washington state Auditor Brian Sonntag, U.S. Attorney Jeffrey Sullivan asked the auditor not disclose the identities of the people who were interviewed for at least three months because such disclosure "may well impede our criminal investigation."

Suspects could face life in prison in pot killings

Suspects could face life in prison in pot killings, Seattle P-I, Jan. 8, 2008. Snohomish County prosecutor Janice Ellis decided not to seek the death penalty.

Carnation killing suspects won't wear shackles in court

Carnation killing suspects won't wear shackles in court, Seattle P-I, Jan. 8, 2008:

Two people charged with killing six members of a family in rural Carnation on Christmas Eve made their first formal court appearance Tuesday as attorneys argued over whether they should wear jail uniforms and shackles in court.

Judge Cheryl Carey granted the defendants' request that they be allowed to wear street clothes (and denied the jail's request that they be kept shackled and in jail clothes to deter escape). The judge said that press could photograph the defendants, but only once they're in street clothes.

Civil Rights Speaker - Fri. 1/25

John Trasviña, President and General Counsel of the Mexican-American Legal Defense & Educational Fund, will speak on The Rollback of The Civil Rights Era in America as part of the Gates Public Service Speaker Series.

January 25, 2008 (Friday) 12:30 PM - 2:00 PM
Location: UW School of Law Room 133

Panel members will be asked to discuss various U.S. Supreme Court decisions (and policy implications of these decisions) that have served to roll back the civil rights of people of color across the country in the areas of workers rights and access to education. There will also be a discussion regarding the wave of passage of anti-immigrant laws across the country through state legislatures and city ordinances

Panel Members:
John Trasviña, President and General Counsel, Mexican-American Legal Defense and Educational Fund (MALDEF)
Luis R. Fraga, formerly a professor of Political Science at Stanford University and now Associate Vice Provost for Faculty Advancement, Office of Minority Affairs and Office of the Provost here at the UW
Pramila Jayapal Executive Director, Hate Free Zone Washington
Cristóbal Joshua Alex, National Campaign to Restore Civil Rights

The event is free and open to the public.

Why Sue a Doc?

What influences a lawyer’s decision to take a med mal case? Obviously there has to be an adverse outcome, but what else makes the potential client’s situation seem like a good case?

Two lawyers who represent defendants examine this topic in an article aimed at medical professionals, to help them avoid making themselves into attractive defendants. James W. Saxton & Maggie M. Finkelstein, How a Successful Litigator Decides Whether or Not to Sue You, Medical Practice Management, Sept.-Oct. 2007, at 90.

Lawyers will look at how to use the presence or absence of documentation, communand the plus factor as well as witness credibility. Your documentation, communication, and service are your evidence that can support your care but also prevent attorneys from taking on cases with bad outcomes. It is time for medical practices to significantly change their liability equation, and fortunately they can [by adopting the strategies discussed in this article]. In addition, these strategies are also good for patient care.

Id. at 93.

Justice Stephens Swearing In

Justice Debra L. Stephens will be sworn in on Monday, Jan. 7. She is to serve the last year of the term vacated by Justice Bobbe Bridge. Washington Courts Press Release, Jan. 4, 2008.

King County's Split of Jury Pool Unconstitutional?

For years, people were called to jury service int he county and assigned to either the Regional Justice Center in Kent or the King County Courthouse in downtown Seattle randomly. That made for big transportation hassles for jurors who had to cross the county. This fall the courts tried out a new system, sending jurors from south of I-90 to the RJC and jurors from north of I-90 downtown. A couple of judges upheld the system over challenges, but this week Superior Court Judge Cheryl Carey, "in a strongly worded opinion," said the system violates the state constitution's requirement that guarantees trial by "an impartial jury of the county in which the offense is charged to have been committed." Jury verdicts in question, Seattle Times, Jan. 6, 2008.

The constitutional provision quoted is in Art. I sec. 22 of the Washington State Constitution.

The court rule challenged is King County Local General Rule 18, effective Sept. 1, 2007. LGR implements RCW 2.36.055, enacted in 2005.

Keep a Record of Talks with Opposing Counsel

Here are some tips on how to confirm an understanding and clear up questions after you have a conversation with opposing counsel: Conversations with Other Lawyers, Day on Torts, Nov. 7, 2007.

What to Do When Jury Asks to Hear Testimony Again

When a jury asks to have testimony read back -- or played back from a recording -- what should the judge do? The Ninth Circuit recently vacated a conviction because the trial judge "abused its discretion by permitting the jury to rehear only a portion of a key witness's testimony without taking necessary precautions to ensure the jury did not unduly emphasize the testimony." United States v. Richard, No. 06-10377 (9th Cir. Oct. 12, 2007). Anne Reed has a good summary: Ninth Circuit To Trial Judge: It's Not Too Late To Look Like An Idiot, Deliberations, Oct. 16, 2007.

The Silent Stereotype - Anti-Semitism in the Courtroom

Deliberations looks at anti-semitism -- citing a study by the Anti-Defamation League and reflecting on what it means for trials. The Silent Stereotype, Deliberations, Oct. 18, 2007.

Expect Less From Your Jury Consultant

Tips on what to expect -- and not expect -- from a jury consultant, by Anne Reed, a jury consultant and attorney: Expect Less From Your Jury Consultant, Deliberations, Nov. 13, 2007.

The Grim Power Of Grim Evidence

Follow the link for a summary of a couple of studies that found that "Jurors presented with gruesome evidence, such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence." "The Grim Power Of Grim Evidence, Deliberations, Nov. 26, 2007.

Judge Posner And The Jury Trial

Deliberations reviews a couple of opinions by Richard Posner on trial judges' management of trials. Judge Posner And The Jury Trial, Deliberations, Dec. 5, 2007.

New Case, Old Law: The Seventh Amendment In The Ninth Circuit

Anne Reed, a Wisconsin lawyer and trial consultant, has a long post discussion a recent Ninth Circuit case on the seventh amendment right to a jury trial: New Case, Old Law: The Seventh Amendment In The Ninth Circuit, Deliberations, Dec. 10, 2007.

The case is Hale v. U.S. Trustee, No. 06-35349 (9th Cir. Dec. 10, 2007).

American Juries: The Verdict

A new book on juries covers decades of empirical research. Neil Vidmar & Valerie P. Hans, American Juries: The Verdict (KF8972 .V53 2007 at Classified Stacks). The publisher's description:

This monumental and comprehensive volume reviews over fifty years of empirical research on civil and criminal juries and returns a verdict that strongly supports the jury system. Rather than relying on anecdotes, Vidmar and Hans—renowned scholars of the jury system—place the jury system in its historical and contemporary context, giving the stories behind important trials while providing fact-based answers to critical questions. How do juries make decisions and how do their verdicts compare to those of trial judges and technical experts? What roles do jury consultants play in influencing trial outcomes? Can juries understand complex expert testimony? Under which circumstances do capital juries decide to sentence a defendant to die? Are juries biased against doctors and big business? Should juries be allowed to give punitive damages? How do juries respond to the insanity defense? Do jurors ignore the law?

Finally, the authors consider various suggestions for improving the way that juries are asked to carry out their duties. After briefly comparing the American jury to its counterparts in other nations, they conclude that our jury system, despite occasional problems, is, on balance, fair and democratic, and should remain an indispensable component of the judicial process for the foreseeable future.

Cy Pres for Class Action Leftovers

Stephen Gardner, the director of litigation for the Center for Science in the Public Interest, has a long thoughtful post about the use of cy pres in class actions. What is cy pres? When some part of the award can't be distributed to all the class members (e.g., because some of them can't be located), courts often use their equitable powers and distribute the funds to charities. Cy pres: Boon or Benefit?, Consumer Law & Policy Blog, Nov. 28, 2007.

His post is in response to Adam Liptak, Doling Out Other People’s Money, N.Y. Times, Nov. 26, 2007, which quotes several critics of cy pres.

Public Citizen Report on New York's Med Mal Insurance "Crisis"

Public Citizen | Publications - A Self-Inflicted "Crisis": New York's Medical Malpractice Insurance Troubles Caused by Flawed State Rating Setting and Raid on Rainy Day Fund:

Shortsighted policy decisions by New York’s government in the 1990s are responsible for the purported medical malpractice “crisis” in the state, according to this report released by Public Citizen, New York Public Interest Research Group and the Center for Medical Consumers. Gov. Eliot Spitzer and a task force studying malpractice are urged to focus on ways to improve patient safety and to resist pleas from the insurance industry and the state’s doctors to pare back patients’ legal rights.

See Barry Boughton, A Self-Inflicted "Crisis", Consumer Law & Policy Blog, Nov. 29, 2007.

Binding Mandatory Arbitration in Employment and Consumer Cases

The Senate is considering a bill, the Arbitration Fairness Act of 2007 (S. 1782), which would eliminate pre-dispute arbitration in employment and consumer contracts. (An identical bill in the House is H.R. 3010.) Here's a post by Richard Alderman, a professor who supports the bill (the headline is sarcastic): BMA Proponents: Consumers Don't Know What's Good For Them; the Businesses That Write the Contracts Do, Consumer Law & Policy Blog, Dec. 17, 2007.

Foreclosures over the Holidays

Public Citizen and Civil Justice, Inc. (Baltimore) are challenging the constitutionality of the mortgage foreclosure notice procedures in Maryland. Foreclosures over the Holidays, Consumer Law & Policy Blog, Dec. 21, 2007.

Halliburton Mandatory Arbitration in Employment Disputes

Halliburton, the giant defense contractor, holds employees to a policy of resolving all employment disputes in arbitration rather than in court. A couple of effects: no public access to the records, a higher win rate for the employer, and lower awards in the cases the employees do win. This policy began when Vice President Dick Cheney was the company's CEO. Stephanie Mencimer, Cheney Justice?, Mother Jones, Dec. 21, 2007.

One case prominently featured in the article is that of Jamie Leigh Jones, a 20-year old employer of KBR (at the time a subsidiary of Haliburton) who alleges she was gang-raped by her co-workers in Iraq.

Thanks: Consumer Law & Policy Blog.

Stephanie Mencimer is the author of (KF8700 .M46 2006 at Classified Stacks) (earlier post).

Cut Along Dotted Line

Photo of Civil War surgeon's kit from National Park Service.

One type of medical error (not necessarily common, but who wants it even once?) is operating on the wrong site (left leg instead of right, pinkie instead of ring finger, appendix instead of ovaries). In response, the health care industry has adopted a Universal Protocol for Preventing Wrong Site, Wrong Procedure, Wrong Person Surgery.

For more on this issue see James W. Saxton & Maggie M. Finkelstein, Can Adhesive Labels Prevent Wrong Site Surgery and Reduce Liability Risk?, 12 Widener L. Rev. 293 (2005). Mr. Saxton and Ms. Finkelstein are litigators (based in Lancaster, PA) who represent doctors, hospitals, and long-term care facilities.

See also Cases of 'Wrong-Site Surgery' Are Rare, Medicine Online, April 20, 2006 (reporting study by Dr. Mary R. Kwaan of 20 years of malpractice insurance records). Hear also Wrong Site Surgery Is Rare, Healthcare 411, April (audio interview with Dr. Kwaan; transcript is here).

Justice Department's man in Baghdad

Justice Department's man in Baghdad, Seattle P-I, Dec. 18, 2007:

An assistant U.S. attorney whose day job is defending federal hospitals from medical malpractice claims will soon find himself in a very different role: heading the Justice Department's operations in Iraq.

Phil Lynch, 56, has been appointed to a one-year stint as 'rule of law coordinator' in Baghdad, meaning he will oversee efforts to advise judges, lawyers and police officers in Iraq's nascent, overwhelmed legal system.

A little more about Lynch is in a press release from the U.S. Attorney's Office (W.D. Wash.).

Women's Prisons: Who's Watching the Guards?

State announces reforms to combat abuse in women's prisons, Seattle P-I, Dec. 20, 2007.

With rising complaints by female prison inmates of sex abuse by guards, the state Department of Corrections said it will hire more women staff members, increase the number of surveillance cameras in prisons and have the State Patrol investigate complaints.

The state has received scores of complaints about sex abuse in recent months, and a class-action lawsuit has been filed against the state by four current or former inmates.

The state has three prisons for women: the Pine Lodge Corrections Center for Women (near Spokane), the Washington Corrections Center for Women at Purdy (north of Gig Harbor), and the Mission Creek Corrections Center for Women (near Bremerton).

A class-action against the state, brought by four current and former inmates, is pending in Thurston County Superior Court. The plaintiffs are represented by Beth Colgan, of Columbia Legal Services.

See also State acts on abuse cases at women's prison, Seattle Times, Dec. 20, 2007.
Washington Corrections Center for Women

$22 million claim filed for boy starved by parents

Yesterday Snohomish County Superior Court Judge Thomas Wynne convicted a father and his girlfriend of criminal mistreatment, finding they intentionally started a four-year-old boy (who is now in foster care). Couple convicted of denying food to 4-year-old, Seattle Times, Dec. 20, 2007. Today a lawyer filed a $22 million claim against the state Department of Social and Health Services on behalf of the boy, for failing to take proper action on complaints that the boy was malnourished. $22 million claim filed for boy starved by parents, Seattle P-I, Dec. 20, 2007.

Flexcar Parking

Surely you've noted parking spots reserved for Flexcars -- there are a lot on campus as well as scattered around town in private parking lots. There are also about two dozen on Seattle streets (the signs say "carshare vehicles," not "Flexcar"). Turns out their legal status is iffy. Sure, the county contracted with Flexcar (to encourage transit use and reduce pollution) and the Seattle Department of Transportation paid for and erected the signs. But nobody amended the Seattle Municipal Code to say that using a spot is a ticketable (or towable) offense. Oops. This spot's reserved for Flexcar? Not exactly, Crosscut, Nov. 27, 2007.

Note: the UW spots are legit, and parking your own car there will get you a ticket.

Is embezzlement in the air?

Is embezzlement in the air?, Crosscut, Dec. 10, 2007. Links to two stories about indictments for stealing $1 million or more from one's employer by phonying credit card charges (and using other techniques) -- one at Milgard Windows in Tacoma, one at Microsoft and Expedia.

Seattle's role in inventing new torture techniques

Seattle's role in inventing new torture techniques, Crosscut, Dec. 17, 2007. A brief article. A professor at Reed College has a book saying that most torture innovations have come from democracies, not totalitarian regimes. The article quotes a passage about a distressing technique used by the Seattle police 1922-26.

A jury sides with BusinessWeek in a lawsuit brought by a former Microsoft director

A jury sides with BusinessWeek in a lawsuit brought by a former Microsoft director, Crosscut, Dec. 18, 2007.

A BusinessWeek reporter doing a story about how family dynamics affect the workplace interviewed the plaintiff and his psychologist. The plaintiff said that the reporter had promised not to use his name or employer in the story -- but she did. He sued. She testified there was no promise, and the jury agreed.

Side note: Judge Robert Lasnik said he would have to recuse himself if the case came to involve Microsoft because his wife owns some shares of stock. The parties agreed that it wasn't relevant. That reminds me of an article I came across recently: Ronald D. Rotunda, Judicial Ethics, the Appearance of Impropriety, and the Proposed New ABA Judicial Code, 34 Hofstra L. Rev. 1337 (2006), available at SSRN: http://ssrn.com/abstract=926437. Rotunda slams the "appearance of impropriety" prohibition as impossibly ambiguous.

Judge rules in favor of Avvo's online rankings

Judge rules in favor of Avvo's online rankings, Seattle P-I, Dec. 19, 2007. Judge Robert Lasnik (W.D. Wash.) yesterday dismissed the case by lawyers against Avvo.com, saying the rationgs are opinions protected by the first amendment.

"To the extent that their lawsuit has focused a spotlight on how ludicrous the rating of attorneys (and judges) has become, more power to them. To the extent that they seek to prevent the dissemination of opinions regarding attorneys and judges, however, the First Amendment precludes their cause of action," Lasnik wrote.

Lasnik also questioned why Browne would use his rating as a "Super Lawyer" by Washington Law & Politics magazine as evidence against his sub-par Avvo rating, noting that the court did not want to determine if one system was better than the other.

The 10-page order is here.

Immigrants in Seattle

They're Coming to America, Wash. L. & Politics, Winter 2008, at 22, discusses immigration to the Seattle area and profiles two asylum applicants. The print magazine has related stories.

If it was online, I'd link to Lawsuits of the Year (pp. 14-20), a somewhat flippant look at a dozen local cases, including a patent infringement case over a dog collar and a high-stakes fight over a millionaire's estate involving the Salvation Army and Greenpeace. The paper copies of this magazine are in the Reference Area.

Judge to consider violinist's claim against symphony

Judge to consider violinist's claim against symphony, Seattle Times, Dec. 15, 2007. Judge Catherine Shaffer recently dismissed two claims of employment discrimination (earlier post). The remaining claim is for intentional infliction of emotional distress.

Judge Shaffer is a Trial Ad instructor.

Mayor's son gets 3 months in casino scheme

Mayor's son gets 3 months in casino scheme, Seattle Times, Dec. 15, 2007. Jacob Nickels's attorney, Jeffery Robinson,

had asked the judge for probation, arguing that Nickels' behavior was "aberrant" and the result of a terrific lapse in judgment. "This is without a doubt the biggest mistake of my life," said Nickels, who has cooperated with the investigation and pleaded guilty in August to conspiracy to steal from a tribal casino.

Prosecutors and a representative of the Nooksack Tribe, which owns the casino, asked for five months. Judge Coughenour sentenced him to three months in a federal prison camp.

Jeff Robinson is a Trial Ad instructor; Judge Coughenour teaches Advanced Trial Advocacy.

Even Lawyers Get the Blues

The Wall Street Journal has a good article about lawyers with depression, and some responsese in the profession. Sue Shellenbarger, Even Lawyers Get the Blues: Opening Up About Depression, Wall St. J., Dec. 13, 2007, at D1.

The website includes a video interview with a young litigation partner who discusses his own bout with depression and substance abuse -- and the senior partner in the firm who helped him get treatment. (Ironically, since one message is seeking work-life balance, you have to watch a Jaguar ad to get to the video. Remember, a hot car might not be worth a lifetime of 80-hour weeks.)

For more information: Lawyers with Depression, mentioned in the article.

The article also mentions a video from the State Bar of Texas, "Practicing from the Shadows: Depression and the Legal Profession." That led me to the website for the Texas Lawyers Assistance Program, which has links to lots of information about mood disorders, stress relief, substance abuse, suicide, and more.

Locally, see the list of Counseling Resources on the law school's website.

I've tried depression and I don't recommend it -- but I do recommend getting help when you need it.

An extra note (Dec. 20): The article refers to research at the University Arizona by Connie Beck and others. That article is: Connie J.A. Beck, Bruce D. Sales & G. Andrew H. Benjamin, Lawyer Distress: Alcohol-Related Problems and Other Psychological Concerns among a Sample of Practicing Lawyers, 10 J.L. & Health 1 (1995-1996), available on Hein Online (UW restricted). It reports findings from a survey of hundreds of Washington State attorneys. Andy Benjamin is an affiliate professor at the UW.

Dec. 22: Andy offers to send a copy of the article to anyone who'd like it but doesn't have access to HeinOnline. Write to him at (gahb54|at|u.washington.edu).

Defenders say 'no' to more District Court cases

Defenders say 'no' to more District Court cases, Port Townsend & Jefferson County Leader, Dec. 5, 2007. The three-person firm that has the contract for public defense for Jefferson County had been assigned 983 district court cases through Nov. 28 -- when the county had contracted for 510. So the firms said: Enough, already! It's still accepting felony cases, but the court has assigned several cases to other local lawyers.

The article raises the issue of parity between prosecution and defense (the county has 4 prosecutors and three public defenders and pays the prosecutors better).

Thanks: Arbitrary & Capricious.

Grant County Public Defender Defends Public Defense

Responding to a story about the government asking for more prosecuting attorneys, a public defender writes eloquently about his job. (He was a deputy prosecutor for 11 years before moving to defense.) Michael E. Haas, Guest Editorial: Defender responds to comments on juvenile crime, Dec. 6, 2007:

Our job is not to roll over and play dead for the prosecuting authority. The continued vitality of our democracy demands that we vigorously test every charge, challenge every accusation even when the accused is unpopular and has been vilified in the press. Let's not forget that John Adams, one of the principal architects of the Declaration of Independence successfully defended a British officer accused of responsibility for the Boston Massacre in 1770.

Some may say that most of our clients are guilty of something. Wouldn't you hate to be the one factually innocent person in the stack that had a public defender roll over on you?

Thanks: Arbitrary & Capricious.

2 Tri-City attorneys suspended in dollars for deals scam

2 Tri-City attorneys suspended in dollars for deals scam, Tri-City Herald, Dec. 7, 2007. A contract public defender and an assistant city prosecutor allegedly told defendants in Benton County District Court that they would get lighter sentences if they made donations to the Kennewick Home Base youth program. And then they pocketed the donations. To the tune of some $160,000. They both pleaded guilty in September and are awaiting sentencing. The Washington State Bar Association has suspended them while it investigates.

The back story: Defendants got off the hook if they donated to charity, Seattle Times, Aug. 16, 2006. The two lawyers were prosecuted by the U.S. Attorney for the Eastern District of Washington. The press release announcing the indictment (Dec. 12, 2006) is here. Kennewick Defense Attorney is Arraigned in Deal Scam, KNDO, Jan. 3, 2007.

Thanks: Arbitrary & Capricious.

Boost child-welfare caseworkers by 70 percent, study says

Over the years, I've posted a number of stories about people suing DSHS for failing to supervise foster care placements or otherwise take care of vulnerable children. Now there's a study indicating that the agency is gravely understaffed. Boost child-welfare caseworkers by 70 percent, study says, Seattle Times, Dec. 11, 2007:

The state's child-welfare system is so short-handed that a recent study estimated 1,240 more workers are needed to keep up with the demand.

The Workload Study, conducted for the state and released last month, comes amid an upswing in the number of children in out-of-home care, either in foster homes or with relatives. Meanwhile, children are being neglected by their parents as overloaded state employees struggle to protect them.

Local News | Judge threatens to take over Columbia Basin salmon plan | Seattle Times Newspaper

Judge threatens to take over Columbia Basin salmon plan, Seattle Times, Dec. 11, 2007:

The federal judge overseeing efforts to balance salmon against dams in the Columbia Basin has told federal dam operators their latest effort does not appear to be any better than two previous failed plans, and said he will take over the process rather than send it back to them a third time.

In a letter, U.S. District Judge James Redden told parties in the long-running case to come to court Wednesday prepared to answer tough questions, such as whether the plans for running dams on the Columbia and Snake rivers so they don't harm salmon were based on the best available science, a demand of the Endangered Species Act.

High court gives judges discretion in sentencing

High court gives judges discretion in sentencing, Seattle P-I, Dec. 10, 2007.

The Supreme Court cases decided yesterday are Kimbrough v. United States and Gall v. United States.

Federal judges in Seattle region hand out lighter sentences

Federal judges in Seattle region hand out lighter sentences, Seattle P-I, Dec. 10, 2007:

Federal judges in Western Washington give lighter sentences than guidelines call for at 10 times the national rate. About one in five defendants get a break. Only Arizona exceeded Seattle's record, and that is likely a statistical aberration explained by the handling of deportations of illegal aliens.The average defendant convicted of a crack cocaine offense nationally in 2006 got just over 10 years in prison, according to U.S. Sentencing Commission statistics. In Seattle, crack defendants got an average of seven years.

The article discusses the practices of the U.S. Attorney's Office which, in its discretion, often does not prosecute the highest possible charges (possibly contrary to Justice Department policy). But this U.S. Attorney's Office has a heavier caseload that many, because it charges all players in drug conspiracy cases, not just the few at the top.

The article quotes Federal Public Defender Tom Hillier, who is also a UW Trial Ad instructor.

Panel allows easing of crack sentences

Panel allows easing of crack sentences, Seattle P-I, Dec. 11, 2007

The U.S. Sentencing Commission voted unanimously Tuesday to allow some 19,500 federal prison inmates, most of them black, to seek reductions in their crack cocaine sentences.

The commission, which sets guidelines for federal prison sentences, decided to make retroactive its recent easing of recommended sentences for crack offenses.

ACLU appeals ruling that pharmacists do not have to sell 'Plan B'

ACLU appeals ruling that pharmacists do not have to sell 'Plan B', Seattle P-I, Dec. 11, 2007.

The American Civil Liberties Union, Planned Parenthood and the Northwest Women's Law Center are appealing a federal judge's ruling that Washington state pharmacies do not have to sell 'morning-after' birth control pills if their pharmacists have moral objections.

Glass Cliff for Women

You've heard of the glass ceiling -- the metaphorical barrier that prevents women and minorities from rising beyond a certain point in an organization. I hadn't heard of glass cliffs, but it turns out there's a research group at the University of Exeter looking into it:

Research into the glass cliff examines what happens when women (and other minority groups) take on leadership roles. Extending the metaphor of the glass ceiling, 'the glass cliff' describes the phenomenon whereby individuals belonging to particular groups are more likely to be found in leadership positions that are associated with a greater risk of failure and criticism.

The research started with business and then moved to politics. Then the team examined law firm dynamics. Julie S. Ashby, Michelle K. Ryan & S. Alexander Haslam, Legal Work and the Glass Cliff: Evidence That Women Are Preferentially Selected to Lead Problematic Cases, 13 Wm. & Mary J. Women & L. 775 (2007), available on HeinOnline (UW restricted).

The experiment described in the article doesn't necessarily show much, but the issues are intriguing. In the experiment, participants were given profiles of three lawyers -- a man and a women with comparably high qualifications and a man who was clearly less qualified. They were also given a news story saying that the lead counsel for a case was stepping down and a new lead was to be appointed. Some participants had a story saying the lead was leaving because the case was in trouble. When a case was seen as risky, participants were much more likely to say that the woman was the best one to take it on. Why? Because they think women can handle challenges? Because they think it won't matter as much if a woman fails?

The participants in the experiments were undergraduate law students in British university. I'd be curious to see the results if they ran it with, say, mid-career U.S. attorneys.

Photo of cliff from Oregon Parks and Recreation Department: Planning.

DVD About Federal Courts and Civil Rights

The National Campaign to Restore Civil Rights says that Take Back the Courts, "made by award-winning documentarian Stanley Nelson," "exposes the negative consequences of a federal judiciary that is increasingly opposed to civil rights protections. Mr. Nelson puts a human face on what has come to be known as the 'rollback' of civil rights. The full film is 22 minutes and is an excellent teaching tool for those interested in educating friends, family, and neighbors about these issues."

The DVD is available in the law library: KF4749 .T35 2006 at Classified Stacks.

DVD About Judicial Election, Tort Reform Battle

Get your popcorn and watch a documentary about tort reform and a hard-fought judicial election. Benched: the Corporate Takeover of the Judiciary (KF8776 .B39 2005 at Classified Stacks)

chronicles the most expensive Supreme Court Race in history – the 2004 race for State Supreme Court in Illinois where over ten million dollars was spent.

"Benched" explores the underlying issue of the race – the battle over "tort reform." Critics charge that the insurance industry unfairly targeted doctors in Madison County, Illinois, raising their malpractice insurance premiums to pressure the doctors to lobby their patients and the community for "tort reform", including caps on medical malpractice awards that will only benefit the insurance industry and harm consumers. The doctors contend that they are being driven out of business by "frivolous lawsuits" while victims of medical malpractice and lawyers argue caps on law suits will deny them justice and that claims of an out of control civil justice system are corporate propaganda.

In the end, the documentary reveals the true beneficiary of this campaign for tort reform – Big Tobacco companies. Critics charge that the Philip Morris tobacco company played a role in financing the tort reform movement to get their chosen candidate, Lloyd Karmeier elected to the Illinois Supreme Court in order to have a pending 10.1 Billion dollar judgment voided by the Court.

In December, 2005, Justice Lloyd Karmeier cast the tie-breaking vote reversing the 10.1 Billion Dollar judgement against Philip Morris.

That's the description from the film's website. Makes it sound interesting, doesn't it?

Litilaw: Hundreds of Free Articles on Litigation Topics

Litilaw is a website that makes available

hundreds of recently published articles of interest to litigators and related legal professionals. All articles are full-text, written by lawyers and have been published as part of continuing legal education (CLE) seminars, in legal journals, or are of similar quality. Litilaw links to copies of articles available on the internet, or hosted by us at the author's request.

You can browse categories such as Class Actions, Criminal Procedure, or Expert Witnesses. Or you can run a search to find something more specific. (It appears to search the titles and summaries, not the full-text of articles.)

The articles tend to be practical rather than scholarly.

It's not comprehensive, of course, but the price (free!) will certainly appeal to lawyers (and others) with limited resources.

Litilaw is sponsored by Lexbe, a web-based litigation-management system.

Blocking the Courthouse Door

Here's a newish (Dec. '06) book critiquing the "tort reform" movement: Stephanie Mencimer, Blocking the Courthouse Door: How the Republican Party and Its Corporate Allies Are Taking Away Your Right to Sue (KF8700 .M46 2006 at Classified Stacks).

Publisher's description:

Thanks to constant political oratory against "frivolous lawsuits" and "jackpot justice," it is widely known that there's a legal crisis in this country. * * *

As a result, the lawsuit issue has moved to the political front burner, and in the past three years, state after state has responded by limiting citizens' rights to sue. * * *

But is there really a crisis? National data show that the number of civil suits is falling, not rising, and that the average damage award is also going down. Despite intense media hype to the contrary, the number of personal injury lawsuits filed every year has been tumbling for the past decade. Upon closer examination, the stories of ridiculous lawsuits usually turn out to be false or badly misleading. The crisis, in short, appears to be a phantom.

So how do we explain the scary headlines? Who's behind the "tort reform movement," and what are the real goals? Blocking the Courthouse Door will show that the movement against so-called greedy trial lawyers and irresponsible plaintiffs is the result of a concerted and successful campaign by large corporations to get this issue on the table and thus limit their own vulnerability in the civil justice system. They have spent decades, and many millions of dollars, on focus groups and Madison Avenue public relations research. They have funded institutes, sponsored academic research, bankrolled politicians, set up phony "astroturf " grassroots organizations (with chamber of commerce return addresses), and fed copy to all-too-gullible journalists.

The publisher's website includes an excerpt from the book.

Res Gestae on YouTube

Found on YouTube:: a musical recap of some Hearsay Exceptions, casting Lego figures as the declarants.

Private eyes indicted in ID-theft case

Private eyes indicted in ID-theft case, Seattle Times, Sept. 7, 2007:

State and federal agents have broken up a nationwide "pretext" identity-theft scheme involving private detectives who obtained personal information about their targets — from financial and medical records to tax returns — through deceit and lies, according to a federal grand-jury indictment unsealed Thursday.

The confidential records were purchased by attorneys, law firms, collection agents and others, and federal agents are "actively investigating" whether they might have broken the law as well, said Assistant U.S. Attorney Kathryn Frierson.

See TEN INDICTED FOR PRETEXTING IN "OPERATION DIALING FOR DOLLARS" - Defendants Would Adopt Various Identities to Get Confidential Tax, Medical and Employment Info, U.S. Attorney's Office W.D. Wash. press release, Dec. 6, 2007.

Suit against DSHS and Docs for Foster Child's Death

The foster mother has already entered an Alford plea and been sentenced for the death by dehydration of a child in her care. Now a civil suit has been filed against DSHS and two doctors who, the complaint alleges, should have noticed the child's decline in health (as well as the condition of other children in the woman's care) and reported it. Suits against DSHS seem comonplace; suing the child's doctors is unusual. The foster mother's case was in Spokane; the article doesn't say where the civil suit was filed. 2 doctors, DSHS sued in death of 7-year-old, Seattle Times, Dec. 8, 2007.

N.Y. Judge Rebukes Lawyers, Mourns Drop in Civility

Dorsey Firm Sanctioned as Part of Judge's Manifesto on Civility in Legal Profession, N.Y.L.J., Nov. 30, 2007. The judge wrote a 129-page opinion, criticizing the lawyers' conduct of discovery in a case that had settled.

Southern District of New York Judge Harold Baer opened his 129-page decision with a discussion of how "naked competition and singular economic focus of the marketplace have begun to infiltrate the practice of law, subordinating the high standards of service, collegiality and professionalism as a result."

He ended it with his observation that "partners are at times made and retained for their rainmaking skills and not for their legal skill, that the number of billable hours is not only the alpha and omega of bonuses but that these hours -- or at least the ones that count -- often exclude pro bono hours, or that who gets credit for originating a piece of business can throw a firm into turmoil and prompt internecine struggles, or that the bottom line has eclipsed most everything else for which the practice of law stands or stood to the extent that the practice of law is now frequently described as a business rather than a profession."

One of the lawyers who was the target of the judge's anger said that he was no model of civility himself, for instance mocking an attorney who asked for permission to attend church services before a deposition the judge had scheduled for a Sunday.

Beatles Diversion

A defendant who had pleaded guilty to burglary replied to a question in the pre-sentence process that asked what he thought the court should do:

Like the Beetles say, "Let it Be."

Judge Gregory R. Todd in Yellowstone County, Montana, corrected the spelling of the name of the "greatest band in rock history" and proceeded to work dozens of Beatles song titles into his order.

This was all back in February, and you could well have seen it in any number of places. But I'm sharing it, for the people who haven't seen it yet. (I'd buried it in a messy stack of old email myself.) See An Opinion Unlike Any Other, The Legal Scoop: Law Students' Perspectives on the Law, July 30, 2007.

Thanks: Jessica Van Buren.

King: No Right to Court-Appointed Lawyer in Child Custody Dispute

State-paid divorce lawyers not a right: Court rules such cases are private, civil disputes, Seattle P-I, Dec. 6, 2007.

People who can't afford a lawyer to help them navigate divorce proceedings and fight for the custody of their children don't have the right to one at public expense, the state Supreme Court ruled Thursday.

A 7-2 majority found that divorces are private, civil disputes that don't call for state-paid attorneys unless state lawmakers decide to change the law.

The controversial case drew much attention as one that could have expanded much-need legal services for poor people but also cost taxpayers a hefty sum.

The president of the Washington State Bar Association issued a statement:

This case highlights the need to greatly expand access to civil legal services in Washington, particularly when basic human needs are at stake such as in child custody disputes. Every day, people around the state appear in court without legal representation. And they often do so by necessity, rather than choice. Those individuals are also often unable to effectively present their cases in a court. Access to the justice system is a fundamental right, and no person should be denied access simply because they are poor. The WSBA will continue to work with the Legislature to expand access to our court system in Washington.

Legal Representation for Low-Income People Remains a Challenge, WSBA press release, Dec. 6, 2007.

The case is In re King, --- Wn. 2d ---, Washington Courts: majority (C. Johnson, J.), concurrence (Sanders, J.), concurrence (Madsen, J.) (Dec. 6, 2007).

U.S. Supreme Court to hear appeal of Ahmed Ressam case

U.S. Supreme Court to hear appeal of Ahmed Ressam case, Seattle P-I, Dec. 7, 2007. The Court granted certiorari today.

Federal prosecutors argue that the 22-year sentence that Judge Coughenour (W.D. Wash.) imposed was too short.

Click here to see earlier posts about Ressam's case. One links to the 9th Circuit case the Court will review. One links to an op-ed piece Judge Cougenour wrote in the New York Times.

If you want to follow the case in the Supreme Court, here's a link to the docket for United States v. Ressam, no. 07-455.

UW notes: Judge Coughenour teached Advanced Trial Advocacy here; Ressam's attorney, Federal Public Defender Thomas Hillier, is a Trial Ad instructor.

Former nursing assistant sentenced for raping paralyzed patient

Former nursing assistant sentenced for raping paralyzed patient, Seattle P-I, Dec. 7, 2007. The victim was a 33-year-old woman who had had a stroke that left her unable to speak or even open her mouth.

Superior Court Judge Julie Spector called it one of the most tragic cases she had ever seen and noted his ultimate prison term would be up to the state parole board.

"It is such a violation of a trust relationship that you still do not take responsibility for," Spector told [the defendant, Lamin] Darboe. "If it were up to me, I would never release you back into the community."

Beating on a bus: Driver didn't see — or didn't act?

A jury trial began this week in a case against King County by two people who were beaten up by a crowd of teenagers and young adults who dragged them off the bus one night three years ago. The plaintiffs say the driver should have called the police and should not have opened the rear door through which they were dragged.

Beating on a bus: Driver didn't see — or didn't act? , Seattle Times, Dec. 1, 2007. (posted 12/1/07)


Update (12/7): $250,000 verdict for couple assaulted on bus, Seattle P-I, Dec. 7, 2007.

Suing DSHS

The Olympian profiled Seattle attorney David P. Moody, who has made a specialty of suing the Department of Social and Health Services. Olympia grad targets DSHS with legal crusade: Lawyer wins $40 million from state in 7 years, Olympian, Nov. 26, 2007.

In addition to profiling Moody, the article discusses the policy question of how much the state should be vulnerable to suit. Attorney General Rob McKenna says that Washington's waiver of sovereign immunity was much greater than other states' and he favors legislation limiting the state's liability in certain circumstances. The bill discussed was 2006 SB 6215; McKenna's background sheet is here. SB 5997 in 2007 would have shielded the Department of Corrections and DSHS from liability when employees exercised reasonable care, even if errors in judgment resulted in bad outcomes.

David Moody is a former UW Trial Ad instructor.

Violinist's Case Against Seattle Symphony

Judge Catherine Shaffer (King County Superior Court) has dismissed a violinist's claims of discrimination against the Seattle Symphony. A claim for intentional infliction of emotional distress was not addressed by the motion for summary judgment. 2 claims dismissed in violinist's suit, Seattle Times, Dec. 1, 2007.

Judge Shaffer is also a UW Trial Ad instructor.

To a High Court -- Crusading Law Students

How about reading something inspirational over the winter break? Law student Ilana Mantell recommends To a High Court, "about the students who filed and won the SCRAP decision. The story behind the case is fantastic (and inspiring for law students)."

For more -- including excerpts -- see the book's website.

Within George Washington University, five law students decide to do a practical group project. They take on the Nation's Railroads and the oldest regulatory agency, the Interstate Commerce Commission. They want compliance with a new law, the National Environmental Policy Act and its application to freight rates. They want the unnecessary extraction of natural resources and the impediments to recycling analyzed and stopped. Their name: Students Challenging Regulatory Agency Procedures, SCRAP. In a stunning surprise, published in the New York Times, they petition for compliance with the law and a billion dollar refund. The legal prowess of the Commission and the Railroads confronts them. It is David versus Goliath. As author Neil Thomas Proto reveals, the five find the tools and inner persistence to meet the challenge.

It's available in the Law Library: KF228.S788 P76 2006 at Classified Stacks.

Case finally closes in 1978 slaying of 15-year-old

Case finally closes in 1978 slaying of 15-year-old, Seattle Times, Dec. 4, 2007. A DNA match that wasn't possible with the technology available at the time of the killing implicated the defendant, who has now entered an Alford plea.

Governor Appoints Justice

Governor Gregoire has named Judge Debra Stephens (Div. III, Spokane) to take the Justice Bobbe Bridge's seat on the Supreme Court when Justice Bridge retires at the end of this month. Gregoire picks Spokane jurist for high court, Seattle Times, Dec. 4, 2007.

Judge Stephens has lived in Spokane all her life and is an honors graduate of Gonzaga twice over (B.A. and J.D.). While her private practice specialized in appellate work, she taught as an adjunct at Gonzaga since 1995, covering an impressive variety of courses -- appellate advocacy, community property, state and federal constitutional law, and legal research and writing. She was appointed to Division III in April and was elected without opposition last month

The press release from the Governor's office is here. The photo at right is from Judge Stephens's profile on Division III's website.

Judge: Dog ordinance unconstitutional

Judge: Dog ordinance unconstitutional, Spokesman Review, Dec. 2, 2007:

Spokane’s “dangerous dog” ordinance is unconstitutional because it denies pet owners the right of due process, a Superior Court judge ruled Friday in a case that may have far-reaching effects.

As a matter of law, the administrative procedures used in the city of Spokane regarding “dangerous dog” determinations and appeals from those rulings violate citizens’ due process rights, Judge Robert Austin said in his ruling.

* * *

In the current system, dogs tagged as “dangerous” by the city and its contractor, SpokAnimal, are deemed to be that unless the owner can prove otherwise – flying in the face of the notion of presumed innocence.

Judge's DUI rulings eyed

Judge's DUI rulings eyed, Seattle Times, Dec. 1, 2007:

There are enough questions about the rulings of the judge presiding in the drunken-driving case against King County Councilmember Jane Hague that failed challenges of his jurisdiction in three Woodinville cases may be appealed, a King County Superior Court judge [Helen Halpert] ruled Friday.

In each of the cases before the court Friday, prosecutors had challenged King County District Court Judge Peter Nault and requested another judge. In each case, the challenge was denied, and Nault continued to handle the cases.

Prosecutors also challenged Nault in Hague's case, and Nault denied the challenge.

Army Pays $725 in Set-Aside World War II Case - New York Times

Army Pays $725 in Set-Aside World War II Case, N.Y. Times, Dec. 1, 2007.

A month after the Army said it made a mistake when it court-martialed Samuel Snow and 27 other black soldiers in World War II, the Pentagon has cut Mr. Snow a check for back pay, money withheld while he served a year in prison on a rioting conviction.

The check was for $725. No interest. No adjustment for inflation.

The court-martial stemmed from a riot -- black soldiers (in a Jim Crow Army) against Italian prisoners of war -- at Fort Lawton in Seattle. (Fort Lawton was one of the Army's main feeders to the Pacific Theater during World War II. Discovery Park is now on the site.)

I missed posting about the Army's ruling in October: 1944 Conviction of Black G.I.’s Is Ruled Flawed, N.Y. Times, Oct. 27, 2007.

The [Board for Correction of Military Records] found that the court-martial was flawed, that the defense was unjustly rushed and that the prosecutor, Leon Jaworski, a young lieutenant colonel who went on to fame three decades later as a Watergate special prosecutor, had important evidence that he did not share with defense lawyers.

The Army reviewed the case, after a resolution from the House of Representatives, inspired by Jack Hamann's book, On American Soil: How Justice Became a Casualty of World War II (D805.5.F66 H36 2005 at Good Reads). See Hamann's website for more. See earlier posts too.