Thursday, April 21, 2011

Growing Nose, Pants on Fire, or What?

Pinocchio cartoon
You can easily tell when Pinocchio is lying because his nose grows longer. But it's a lot harder with flesh-and-blood people.

A recent article in a psychology journal reviews the literature and explains why many standard "rules" are basically hooey. People who are lying don't fidget or avert their gaze more than others, for instance.

The authors go on to propose interviewing techniques for spotting lies. They say it's better to use an information-gathering approach than an accusatory approach. Among other things, they encourage asking temporal questions, using evidence strategically, and asking questions to increase the potential liar's cognitive load (i.e., make it harder for the liar to keep his or her story straight).

Aldert Vrij, Pär Anders Granhag & Stephen Porter, Pitfalls and Opportunities in Nonverbal and Verbal Lie Detection, Psychological Science in the Public Interest, vol. 11 no. 3, at 89-121.

Elizabeth F. Loftus has a brief editorial introducing this article: Catching Liars, Psychological Science in the Public Interest, vol. 11 no. 3, at 87-88. One interesting observation, of concern for social justice as well as spotting individual lies:
Using gaze aversion to decide that someone is lying can be dangerous for that someone’s health and happiness. And—what was news to me—some cultural or ethnic groups are more likely to show gaze aversion. For example, Blacks are particularly likely to show gaze aversion. So imagine now the problem that might arise when a White police officer interviews a Black suspect and interprets the gaze aversion as evidence of lying. This material needs to be put in the hands of interviewers to prevent this kind of cross-racial misinterpretation.
It's interesting to me that, steeped in social psychology as she is, Loftus hadn't before focused on cultural differences like this.

(I'm currently reading The Warmth of Other Suns: The Epic Story of America's Great Migration, by Isabel Wilkerson, which piles layer upon layer of incidents when African Americans were slapped down–in small ways and large–for failing to look away and defer to anyone in power, so it's not at all surprising that Blacks would "show gaze aversion." I'm also reminded the passage in David Copperfield, which I just read, where the toadying Uriah Heep explained that his family had been taught "a deal of umbleness--not much else that I know of, from morning to night. We was to be umble to this person, and umble to that; and to pull of our caps here, and to make bows there; and alwasy to knowo our place, and abase ourselves before our betters. And we had such a lot of betters!" It's hard to like Heep, but this passage explained that his damage had causes beyond himself. Heep often was lying, of course, but you couldn't have told that by his "umbleness" alone.)

Sunday, April 17, 2011

Defense Attorney Profile

This morning's Seattle Times has a front-page profile of attorney Eric Lindell. Ken Armstrong, West Seattle attorney takes difficult cases -- and wins | Seattle Times Newspaper, April 17, 2011.

Lindell's career has focused on criminal defense, first with SCRAP and then in private practice. One case discussed is an appeal currently pending in the Washington Supreme Court challenging the statute that allows propensity evidence in sexual abuse cases (RCW 10.58.090). See earlier post about this case in Division I.

The article discusses several other cases in which Lindell represented criminal defendants. And there's one case where his work on behalf of a private client led to a successful prosecution. A child had drowned when in the care of her stepfather. Investigators originally ruled it an accident, but the mother thought her husband had killed the little girl. Lindell's work on a wrongful death suit (that was dropped) led to the prosecution and conviction of the stepfather -- the justice the mother wanted.

How Do People Find Lawyers?

The ABA's Standing Committee on the Delivery of Legal Services commissioned a survey to learn how people find lawyers and, when they don't use lawyers, how they find legal information: Perspectives on Finding Personal Legal Services: The Results of a Public Opinion Poll, Feb. 2011.

For summaries see How People Find Lawyers: Referrals Are Popular, Blogs Not So Much, Poll Finds, ABA J. online, March 23, 2011; How People Find Lawyers, Gallagher Blogs, March 25, 2011.

People are more likely to use the Internet than the Yellow Pages now, but the dominant way of finding lawyers is still personal referral.

Monday, April 11, 2011

Has the Judge Eaten?

cartoon of sandwich and orangeA caricature of Legal Realism is that it says that outcomes depend on "what the judge had for breakfast." A new study looks not at what judges ate but when they ate.

Shai Danzigera, Jonathan Levavb & Liora Avnaim-Pessoa, Extraneous Factors in Judicial Decisions, Proceedings of the Nat'l Acad. of Sci. Early Ed. (published online before print), April 11, 2011, PDF (UW restricted), abstract (UW restricted). News stories: Facing a judge? Study says go early or after lunch, Physorg.com, April 11, 2011; Hunger Affects Court Rulings?, PRI's The World, April 11, 2011 (radio interview).
The authors examined 1,112 parole rulings by 8 Israeli judges during 50 court days over 10 months. Each day included a late-morning snack break (usually a sandwich and fruit) and a lunch break. The judges did not control the order of the cases that came before them, and they didn't know the content of each case until it was presented. Again and again, it turned out that prisoners whose cases were heard first thing in the morning or shortly after one of the breaks. The stats are striking: graph shows jump in favorable outcomes for prisoners after each meal break The authors didn't ask the judges whether having a snack (or meal) simply put them in a better mood and made them more sympathetic to parole petitions. Perhaps there's an effect due to mental fatigue in doing repeated tasks or low blood glucose levels as the court session wears on.

Graphics: (1) sandwich and fruit by mw; (2) graph, showing jump in favorable decisions after each break, from article.

Tuesday, April 5, 2011

Empirical Legal Studies

Empirical legal studies uses social science tools to examine law and legal institutions. These tools can include:

How can you learn about this diverse field? What are the leading works, what organizations work in the area, where are there standard datasets to use? A librarian at Fordham has prepared an excellent guide: Alissa Black-Dorward, Empirical Research (posted April 1, 2011). Tabs lead you to

  • General Materials

  • Statistical Software and Instruction

  • Survey Research

  • Banking

  • Courts, Judges & Lawyers

  • Crime and Criminal Justice

  • Economics, Business & Finance

  • Environment

  • Evidence

  • Foreign & International

  • Health

  • Intellectual Property

  • Social Science Statistics

  • State Statistics
Some of the information in the guide is tailored to Fordham, but you can find the equivalent here. For instance, our library has many of the books cited (although perhaps with different call numbers) and the UW has its own Human Subjects Division for ensuring ethical practices. ---------------------------------- This post is copied from Gallagher Blogs, on the assumption that many readers of Trial Ad Notes don't read the law library's blog (although you're welcome to, of course) but would be interested in this topic.

Wednesday, March 30, 2011

A Visit to the Supreme Court

Here is a guest post by Maureen Howard: Eric Schnapper We all know how brilliant our own Professor Eric Schnapper is and realize that among his many, many accomplishments are two USSC "wins" this Term, but I write to report that you haven’t lived until you’ve see him stand and argue before the Court in person. I was fortunate to enjoy this honor yesterday when he argued Borough of Duryea v. Guarnieri, dealing with the protections afforded a government employee under the Petition Clause of the First Amendment. Professor Schnapper’s argument was clear and compelling, and he masterfully fielded questions from the justices. As a teacher of advocacy, I was mightily impressed. As a colleague, I was so very proud. It was also a memorable day in the Court because prior to argument, Justice Breyer read a summary of the Kasten decision handed down [March 22], which was the second of Professor Schnapper’s "wins" of the term. Joining Professor Schnapper at respondent’s counsel table sat the lawyer who had (unsuccessfully) argued the other side of the Kasten case, an alliance I am sure was not lost on the justices. Supreme Court bench A personal memorable moment for me occurred just prior to argument when Professor Schnapper moved from the floor for my admission to the Court. Chief Justice Roberts granted the motion, welcomed me to the Court, and directed the clerk to administer the oath. Photos: Eric Schnapper from University of Washington School of Law; Supreme Court bench from United States Supreme Court.

Monday, March 28, 2011

Symposium on Prosecutorial Disclosure Duties

Last June, the Cardozo Law Review had a symposium, New Perspectives on Brady and Other Disclosure Obligations: What Really Works? (vol. 31, no. 6):

Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works?
Ellen Yaroshefsky 1943

New Perspectives on Brady and Other Disclosure Obligations:
Report of the Working Groups on Best Practices 1961

Voices From the Field: An Inter-Professional Approach to Managing Critical Information
Speeches of the Symposium 2037

Organizational Guidelines for the Prosecutor's Office
Rachel E. Barkow 2089

Talking About Prosecutors
Alafair S. Burke 2119

Can an Ethical Person Be an Ethical Prosecutor? A Social Cognitive Approach to Systemic Reform
Lawton P. Cummings 2139

Beyond Training Prosecutors About Their Disclosure Obligations: Can Prosecutors' Offices Learn from Their Lawyers' Mistakes?
Bruce A. Green 2161

Emotionally Charged: The Prosecutorial Charging Decision and the Innocence Revolution
Daniel S. Medwed 2187

Professional and Conviction Integrity Programs: Why We Need Them, Why They Will Work, and Models for Creating Them
Barry Scheck 2215
I learned of the symposium from a Penn State law professor who gives it this endorsement:
The 2010 Cardozo Symposium entitled “New Perspectives on Brady and Other Disclosure Obligations: What Really Works” is important reading for all lawyers – regardless of specialty or country – because we all have an interest in participating in a legal system that has a robust rule of law. Corruption or even misunderstandings about prosecutor conduct, including disclosure duties, can undermine public confidence and also the confidence of the legal profession in our legal system.
. . .
Even if you do not study criminal justice issues, you should read the Foreword in order to develop a better appreciation of issues that are critical to the rule of law and to see additional examples of how systemic, ex-ante approaches . . . can be used when designing legal systems and rules.
Laurel Terry, Academics Making a Difference: Prosecutor Disclosure Obligations in Criminal Cases, Jotwell, March 24, 2011.

Some of these issues were also discussed in the Washington Law Review two years ago:
  • Judge Robert S. Lasnik and David Boerner, The Legacy of Norm Maleng, 84 Wash. L. Rev. 3 (2009) Full Article
  • Hon. Patrick Fitzgerald, Thoughts on the Ethical Culture of a Prosecutor's Office, 84 Wash. L. Rev. 11 (2009)
  • Daniel S. Medwed, The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit, 84 Wash. L. Rev. 35 (2009) Full Article

Poor Trial Ad Skills Lead to Suspension

Calif. Suspends Lawyer Who Botched Gang-Related Shooting Case, Orders Arbitration Over Disputed Fee - ABA Journal, March 18, 2011. The disciplinary proceeding included three counts (with subcounts). The list right out of a Trial Ad syllabus is from Count One:

[R]espondent failed to perform with competence in the criminal case by:
  • Performing little, if any, pre-trial case development, planning, or investigation on behalf of Rios.
  • Failing to adequately argue motions in limine.
  • Failing to make a coherent opening statement.
  • Repeatedly failing to ask admissible and relevant questions.
  • Repeatedly failing to assert proper objections.
  • Repeatedly failing to move to exclude improper testimony.
  • Failing to advance a defense theory.
  • Repeatedly failing to adequately cross-examine witnesses.
  • Failing to properly handle expert witness testimony on gang-related matters.
  • Repeatedly failing to properly impeach witnesses’ testimony.
  • Failing to adequately prepare Rios for direct and cross examination.
  • Repeatedly failing to present evidence or elicit facts on behalf of Rios.
  • Failing to diligently perform the services for which he was hire
In re Harlan R. Antler, STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING (Sept. 20, 2010).

Senior judges keep 9th Circuit courthouses open

With vacant judgeships and mounting caseloads, the ninth circuit relies on its senior judges. Carol J. Williams, Senior Judges Keep 9th Circuit Courthouses Open, L.A. Times, March 14, 2011. Featured is 88-year-old Judge Betty Fletcher (UW Law class of 1956) who carries a full caseload.

Sunday, March 6, 2011

Mark Twain on Ability to Judge Expressions

picture of Mark Twain
A bit of my leisure reading reminded me of trial ad.

After visiting "The Last Supper"—and a lot of other famous European art—Mark Twain riffed on people's ability (or inability) to judge the meaning behind expressions.

It vexes me to hear people talk so glibly of "feeling," "expression," "tone," and those other easily acquired and inexpensive technicalities of art that make such a fine show in conversations concerning pictures. There is not one man in seventy-five hundred that can tell what a pictured face is intended to express. There is not one man in five hundred that can go into a court-room and be sure that he will not mistake some harmless innocent of a juryman for the black-hearted assassin on trial. Yet such people talk of "character" and presume to interpret "expression" in pictures. There is an old story that Matthews, the actor, was once lauding the ability of the human face to express the passions and emotions hidden in the breast. He said the countenance could disclose what was passing in the hear plainer than the tongue could.

"Now," he said, "observe my face—what does it express?"

"Despair!"

"Bah, it expresses peaceful resignation! What does this express?"

"Rage!"

"Stuff! It means terror! This!"

"Imbecility!"

"Fool! It is smothered ferocity! Now this!"

"Joy!"

"Oh, perdition! Any ass can see it means insanity!"

Expression! People coolly pretend to read it who would think themselves presumptuous if they pretended to interpret the hieroglyphics on the obelisks of Luxor—yet they are fully as competent to do the one thing as the other.
Mark Twain, Innocents Abroad, ch. 19.

What do you think? Did Twain have it right? If most people are this bad at reading faces, why do we put so much faith in a juror deciding that a witness's fidgeting and stammering means lying rather than sincerity or uncertainty rather than shyness?

Graphic: picture of young Mark Twain lifted from America.gov, Mark Twain Abroad.

Thursday, March 3, 2011

Cross-Examination Handbook


The other side puts a witness on the stand, and the jury the hears a selection of facts and impressions—generally the selection that the other side wants it to hear. Now you get the wonderful opportunity to cross-examine the witness. At the end of your cross, you'd like the other side's case to seem weaker and your own to seem stronger, of course, but how do you do that?

A new textbook offers guidance. Cross-Examination Handbook: Persuasion, Strategies and Techniques is by our neighbors Ronald H. Clark (Distinguished Practitioner in residence at Seattle U) and William S. Bailey (partner in Fury Bailey and part-time faculty at Seattle U and the UW) with George R. Dekle (professor at University of Florida).

A book that covers all of trial advocacy can only devote a chapter or two to cross-examination, but this one is all cross, all the time. (Bailey argues for a whole course on cross in this post.) The authors break cross-examination down into understandable pieces. The text is very accessible, even conversational in places.

How do you plan a cross? It might be obvious, but I hadn't really thought about starting with the closing argument: if I want to say ___ in closing, what do I need to get the witness to say on cross now?

The book discusses the difference between cross-examination when you are trying to get the witness to concede facts that will bolster your case and cross when you are trying to discredit the witness. And it offers tips for doing each.

You might use many techniques with one witness -- seeking factual concessions AND impeaching testimony on one point, for instance -- and this book also gives some tips for structuring your cross overall.

There are chapter previews and review lists with text boxes to help you study and retain the information. Several chapters illustrate points with two fictitious cases—a civil wrongful death case and a criminal armed robbery case—so you can see how the different cross techniques can be used with one set of facts and even one witness.

The authors also draw examples from real-life cases. Some are from history (Abraham Lincoln's legendary almanac cross-examination (more on that on the authors' blog) and Clarence Darrow's cross of William Jennings Bryan in the Scopes trial. Others are much more recent. Seattle sports fans might appreciate the examples from the cases involving the Sonics' leaving Seattle and Huskies football coach Rick Neuheisel being fired for gambling (March Madness anyone?). (Maybe these bits of Seattle sports history are still painful to some fans.)

It's been many, many years since I took Evidence. I'd find it very helpful to go over the list of common objections to cross (pp. 344-45) and the summaries of the evidence and ethics rules they stem from (pp. 346-54), as well as the advice about tactics for meeting objections (pp. 354-55).

For classroom use—or even dedicated self-education—there are lots of exercises to try, with supporting documents on a CD-ROM that's included with the book.

I'm a librarian, not a trial lawyer. For a practitioner's perspective, see this warm review on MS Litigation Review and Commentary.

The book has a website and a companion blog (Cross-Examination Blog).

The law library's copy hasn't been cataloged yet—I've had it in my living room so I could write this post—but it will be soon. It will be included in this catalog record.

Tuesday, March 1, 2011

"Voir Google"?

Interesting article gives specific examples of attorneys weighing jurors based on online activity -- as well as judges' reactions to the practice. Internet v. Courts: Googling for the perfect juror, Reuters Legal, Feb. 17, 2011.

One 24-year-old was excluded from a jury because of "antibusiness sentiments" in blog posts.

[The excluded juror], for his part, said in an interview that while he understands why ConAgra's lawyers viewed his online activities as evidence of bias, he doesn't believe they should have been taken so seriously. "This is the Internet," he said. "It's a different realm. It's like a playground."
Thanks: Mike Meredith.

Jury Nullification Advocate With Court Pulpit Charged - NYTimes.com

A former chemistry professor is charged with jury tampering because of his activity handing out brochures outside courthouses, telling potential jurors that they have the right to ignore the law if they disagree with it. Jury Nullification Advocate With Court Pulpit Charged, NYTimes.com, Feb. 25, 2011.

Thanks: Maureen Howard.

Using the Internet as a Tool for Cross-Examination

An article offers tips for Using the Internet as a Tool for Cross-Examination, Law Technology News (N.Y.L.J.), March 1, 2011. I've seen a number of articles about using information found in, say, Facebook to impeach a witness. This article goes further in offering two sample series of questions, e.g.,

Q: Can we agree your recovery was a good one?

A: I wouldn't say that.

Q: You've certainly participated in some challenging activities, haven't you?

A: What do you mean?

Q: Like skiing, true?

A: I tried, but was unable to ski.

* * *
Eventually, the cross-examiner sets the trap and undoes the witness with a YouTube video, perhaps like this one:



(I have no reason to believe the skier in this video has ever been a plaintiff in a personal injury case or, if so, misled the jury about the extent of his injuries. Looks pretty good, doesn't he?)

Friday, February 18, 2011

Race and the Criminal Justice System

People of color are over-represented at every stage of the criminal justice system, from arrest through sentencing and incarceration.

Paula Ditton Henzel, Disproportionality and Disparity in Adult Felony Sentencing 2003 (Wash. State Sentencing Guidelines Comm'n, [2003]).

What are the causes, effects, and possible cures for this serious disproportionality?

A state-wide Task Force on Race and the Criminal Justice System has been meeting for the last few months and will meet with the Washington Supreme Court March 2.

The Law Library has prepared a guide, linking to Washington State studies and other materials. See Race in the Criminal Justice System.

Next Thursday, the UW Minority Law Students Association presents a panel, Racial Disparity & The Criminal Justice System, 3:30-5:

Seattle University School of Law is also having speakers on this and related topics as part of its Diversity Week 2011. Thursday afternoon has a CLE, Advocacy Strategies for Protecting Civil Rights (3:30-5:30), followed by a reception (5:30-7:30):
The reception following the CLE will provide a forum to discuss how lawyers, law students and community members can address racial bias in the criminal justice system. The discussion will be facilitated by the Co-Chairs of the Task Force on Race and the Criminal Justice System, Professor Robert Chang, director of the Fred T. Korematsu Center for Law and Equality, and Judge Steven González, chair of the WA Access to Justice Board.
If you're inspired by the UW panel, you can hop up Capitol Hill for the reception at SU.

Tuesday, February 15, 2011

"Hot Coffee" Documentary Challenges "Tort Reform"

Oregon Attorney's Documentary 'Hot Coffee' Makes the Sundance Cut, ABA Journal, Feb. 1, 2011. Susan Saladoff explains her project here:



The movie's website includes links to resources. And this page gives links to Democracy Now! segments with film clips and interviews. One person interviewed is former Mississippi Justice Oliver Diaz whose election was opposed by the U.S. Chamber of Commerce. After he won, the local U.S. Attorney prosecuted him for campaign finance violations (he was acquitted) and then for tax violations (he was acquitted again).

The film got good press at Sundance. I'm looking forward to when the website includes a list of cities where it's playing -- and Seattle is one of them.

Sunday, February 13, 2011

Documentary on Media, Race, Crime, and Punishment

Juror Number Six (2008) -- a short documentary on the Web -- explores the media, race, and the criminal justice system. Dozens of clips from television news, drama, and reality programs vividly illustrate how media shapes our perceptions (and jurors' perceptions) of crime and criminals. Crime has been going down, and yet crime is portrayed much, much more. Fear sells.

While the news scares viewers, dramas might actually comfort us. On "Law and Order," for instance (and I've happily watched hundreds of hours of it!), we see far more African American judges, prosecutors, and defense attorneys than are present in most communities. Defendants all seem to have counsel right away, and generally very sharp counsel. And so, the film suggests, we are led to believe that the system is much fairer than it actually is.

The documentary's producer lists impressive partners:

More on The New Jim Crow

Real Change has a long interview with Michelle Alexander, the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (see earlier post). Rosette Royale, One Nation, Under Lock and Key, Real Change, Feb. 9-15, 2011.

Friday, February 11, 2011

Angry Jurors Hope to Give Acquitted Teen Their Jury Pay

The Cleveland Plain Dealer reports that the county prosecutor has brought cases against hundreds of people with very little evidence. In less than a year, judges acquitted 364 defendants mid-trial. In one recent case, the jury not only acquitted, but some of the jurors wanted to give their jury pay to the defendant if he got his GED. Angry Jurors Hope to Give Acquitted Teen Their Jury Pay - News - ABA Journal, Feb. 10, 2011.

Thanks: Maureen Howard.

Sunday, February 6, 2011

Judges Surveyed About Lawyers

How well do lawyers represent their clients? It's a hard question to answer. One approach would be to ask the judges who observe the lawyers at work, and that's just what Judge Richard A. Posner and Professor Albert H. Yoon have done: What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317 (2010).

Here's the short version of their findings, from the abstract:

We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law. In many instances, the underlying causes of these disparities can be traced to the resources of the litigants. The judges’ responses also suggest that they respond differently than juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.
But don't stop with the abstract! The more detailed findings are very interesting.

Judges' backgrounds.
I was surprised to see the number of judges with experience in criminal defense, since I heard or read somewhere that prosecutors more often became judges. But the patterns vary between trial and appellate courts and between federal and state courts.
expfed appfed trialstate appstate trial
crim defense19%36%29%40%
prosecution9%14%29%44%
p. 323.

Disparities in civil cases.
The civil areas where federal trial judges saw the greatest disparity were civil rights and personal injury/malpractice. When there was a disparity, the defendant had better representation. State judges saw the greatest disparities in family law and personal injury/malpractice. Again, when there was a disparity in the tort cases, it was generally the defense that had the advantage.

Judges said that intellectual property and commercial litigation cases seldom had a great disparity between the sides' lawyers. These lawyers were rated between "good" and "excellent" -- i.e., at the top of the scale.

What about criminal cases?
Federal judges exhibited a clear divide, ranking public defenders highest, followed closely by prosecutors. Both federal appellate and district judges deemed court-appointed and privately retained counsel markedly (and statistically significantly) worse, although they disagreed which group was the worst. In contrast, state judges perceived greater parity among criminal lawyers, with both appellate and trial judges giving their highest ratings to retained counsel. Appellate judges generally gave similarly high scores to prosecutors and public defenders, whereas trial judges thought privately retained counsel distinctly better than other criminal lawyers.
pp. 325-26 (footnotes omitted). Judges across all categories said that they observed significant disparities in quality between prosecution and defense 21-40% of the time.


When there is a disparity in representation, many judges conduct additional research. p. 335. (But they aren't happy about this burden -- see p. 346.) The judges thought that many jurors favor litigants with better lawyers, but they thought they themselves could rise above the disparate representation. p. 326. But in many situations, they thought that the representation did not make much difference to the outcomes of the cases. p. 327. The authors discuss this perception -- and related studies about the impact of counsel in criminal cases -- at pp. 341-43.

Change law school?
The survey asked judges what could be done to improve the quality of representation.
About law schools, judges were in general agreement. The most common response in each judge group was that law schools should provide more coursework oriented to instilling practice-oriented skills. The second most popular response was expansion of core curriculum—-that is, courses required of all students—-to ensure a stronger foundation for practice. More than two-thirds of the judges in each group proposed changes in law school curricula, while no more than 10% in any group recommended higher admissions standards. Recommendations to make tuition more affordable drew slightly higher but still modest support (ranging between 5% and 14%).
p. 338 (footnote omitted)

The judges would like to see better trial skills:
Judges expressed concern about the effectiveness of the bar at trial advocacy. One federal district judge remarked that lawyers are “smart, well-prepared and know the law and write great briefs—but if the case goes to trial, their trial skills are nowhere near what their pre-trial skills were.”
p. 346

The whole article is worth a look: there are lots of interesting nuggets, and the footnotes cite other intriguing studies about lawyers' effectiveness.

Saturday, February 5, 2011

Memoirs of Death Penalty Lawyering

Andrea Lyon and David Dow have a lot in common: they both are lawyers, they both represent indigent defendants in criminal cases, they both teach in law school clinics, and they both have written absorbing memoirs about their work. (To protect client confidentiality, both changed names and details of cases but say they are representing real events honestly.)

There are some differences, too. For instance, Dow (in Texas) never had a governor impose a moratorium on the death penalty, but Lyon did (in Illinois). And I assume Dow's ability to handle homicides was never questioned because of his gender.

Andrea Lyon Angel of Death Row is Lyon's memoir, taking the reader from her legal education at a school that emphasized clinical experiences to the Cook County public defender's office, where she eventually rose to the position of chief of the Homicide Task Force. After she left public defense, she founded the Illinois Capital Resource Center and later moved to teaching.

Lyon reports the investigations and trials of many cases. "Winning" a case does not always mean the defendant is acquitted -- it can mean that a defendant who is charged with first degree murder is convicted of manslaughter. And when a defendant is convicted of a capital offense, it is a defense victory if the penalty phase of the trial results in a sentence of life imprisonment. Remarkably, in 19 of the 19 capital cases Lyon has tried through the penalty phase, not one of the defendants was sentenced to death.

David Dow In Autobiography of an Execution, Dow weaves together several capital cases at once. Unlike Lyon, who was generally the trial attorney, Dow and his associates focused on post-conviction relief, and trial counsel had often put up lackluster defenses at best. For instance, two of his clients were represented by a lawyer who fell asleep during trial. Many of the clients' appellate lawyers failed to raise good potential claims. By the time the cases got to Dow, there were limits to what he could do. And so the book describes flurries of research, motions, petitions -- and several executions.

Both writers convey the toll the work can take on lawyers. The main reason Lyon left the defender's office was that she wanted to spend time with her daughter and not work on cases around the clock. Dow often numbed himself with alcohol, but also found comfort in his family life -- wife, son, and dog.

Angel of Death Row is in Good Reads at KF373.L963 A3 2010. AndreaLyon.com (includes information about the book and much more). WorldCat record.

The Autobiography of an Execution is in the Classified Stacks at KF373.D635 A3 2010. Publisher's page. WorldCat record.

Tuesday, February 1, 2011

Diversity Science Research

The UW Alumni Association offers How Diversity Science Research Informs Law and Policy, Wed., Feb. 23, 2011, at 7 pm:

Despite societal efforts to promote equality and harmonious intergroup relationships, policies and practices employed in the service of these goals are not always successful. Drs. Kaiser and Tropp draw upon innovations from psychological science to offer empirical evidence and practical strategies for fostering positive outcomes in diverse settings, such as schools and workplaces.
Any applications to work with colleagues, witnesses, and jurors?

The event is free, but an RSVP is required.

Monday, January 31, 2011

Originalism and the Jury

Ohio State Law Journal has a symposium on "Originalism and the Jury":

Suja A. Thomas, Foreword, 71 Ohio St. L.J. 883 (2010).

Douglas A. Berman, Making the Framers’ Case, and a Modern Case, For Jury Involvement in Habeas Adjudication, 71 Ohio St. L.J. 887 (2010).

Brian T. Fitzpatrick, Originalism and Summary Judgment, 71 Ohio St. L.J. 919 (2010).

Judge Nancy Gertner, Juries and Originalism: Giving “Intelligible Content” to the Right to a Jury Trial, 71 Ohio St. L.J. 935 (2010).

Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010).

William E. Nelson, The Lawfinding Power of Colonial American Juries, 71 Ohio St. L.J. 1003 (2010).

James Oldham, On the Question of a Complexity Exception to the Seventh Amendment Guarantee of Trial by Jury, 71 Ohio St. L.J. 1031 (2010).

Gene Schaerr and Jed Brinton, Business and Jury Trials: The Framers’ Vision Versus Modern Reality, 71 Ohio St. L.J. 1055 (2010).

Suja A. Thomas, A Limitation on Congress: “In Suits at common law”, 71 Ohio St. L.J. 1071 (2010).

Juicy stuff for constitutional law, legal history, and trial practice buffs!

Monday, January 24, 2011

I will never complain about jury instructions again! «

Justin Walsh, writing on The Amateur Law Professor blog, shares a choice jury instruction from 1869 here: I will never complain about jury instructions again! «

Friday, January 21, 2011

An iPad in Your Trial Briefcase?

screen shot
Two new iPad apps are designed to help lawyers keep track of jurors during selection and trial. A reviewer says they seem quite promising -- much better than moving sticky notes around a legal pad! Each app is just $9.99, so they're pretty cheap to try out (if you already have an iPad, of course). Ted Brooks, Selecting and Monitoring a Jury on an iPad, Legal Technology News, Jan. 21, 2011.

The reviewer was much more cautious about a couple of iPad apps for managing and displaying trial exhibits. Ted Brooks, Two iPad Apps Make Their Cases for Trial, Legal Technology News, Jan. 11, 2011. One of those apps is also $9.99; the other is $89.99.

Graphic: screen shot of Jury Tracker app from Legal Technology News review.

Monday, January 17, 2011

Loans for Lawsuits: High Price, Little Regulation

The New York Times and the Center for Public Integrity (a nonprofit for investigative journalism in DC) took a look at the industry that lends money to plaintiffs until their settlements or awards come in. The interest rates are very high -- a $10,000 loan can become a $30,000 debt very quickly -- but the industry says they are justified because of the risk that the plaintiffs lose their cases. Others say the practice is abusive. See Benjamin Appelbaum, Lawsuit Loans Add New Risk for the Injured, Jan. 16, 2011.

Sunday, January 16, 2011

Articles on E-Discovery Sanctions, Federal District Courts, and More

A recent study finds increasing sanctions of lawyers and their clients for e-discovery violations. Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010). You can find a brief discussion of this 76-page article here: Study: Lawyer Sanctions Over Electronic Discovery on the Rise - Law Blog - WSJ, Jan. 13, 2011.

That article caught the eye of the Wall Street Journal's blogger, but it's just one in a special symposium issue: the 2010 Civil Litigation Review Conference. Here are the rest of the articles in that issue:

John G. Koeltl, Introduction, Progress in the Spirit of Rule 1 ... 537

John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform ... 547

Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience ... 597

Steven S. Gensler, Judicial Case Management: Caught in the Crossfire ... 669

Patrick E. Higginbotham,The Present Plight of the United States District Courts ... 745

Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation ... 765

For even more scholarship on civil litigation, see the shorter e-only articles on Duke Law Journal's Workshop site.

Patrick E. Higginbotham has been a federal judge for 35 years (N.D. Tex. 1975-82, 5th Cir. 1982-present), so I was curious about what he thinks the plight of federal district courts is. He observes that conducting trials has become a very small part of the work of federal trial court judges -- the average district judge has almost 300 days a year with no trials. While some see this as a good thing, Judge Higginbotham says it is "a manifestation of the illness" he discusses.

He argues "that federal trial courts are now more like administrative agencies than trial courts in their present efforts to discharge their duty to decide cases or controversies, and that we are witnessing the death of an institution whose structure is as old as the Republic."

The changes Judge Higginbotham examines are the rise of arbitration and other ADR, the decline of attorneys with trial experience, the loss of the 12-person jury, and "the drift of the federal courts to the civil law model and their capture by the administrative model." He urges a return to the trial model.


Thanks: Aaron McElhose

Saturday, January 15, 2011

Judy Clarke: Loughner's Lawyer Defended the Unabomber - TIME

Judy Clarke has been appointed to represent a number of unpopular defendants: Ted Kaczynski (the Unabomber), Susan Smith, Zacarias Moussaoui, Timothy McVeigh, Eric Robert Rudolph. And now she has been appointed to represent Jared Loughner. See Judy Clarke: Loughner's Lawyer Defended the Unabomber - TIMEJan. 12, 2011; Loughner’s Lawyer Is Called a Master Strategist, N.Y. Times, Jan. 10, 2011.

For a very interesting account of the representation of Kaczynski, see Michael Mello, United States v. Kaczynski: Representing the Unabomber, in Legal Ethics Stories (Deborah L. Rhode & David Luban eds., 2006), KF306.A4 L43 2006 at Reference Area.

Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog

In Is There Such a Thing as Social Network Privilege? « Law, Technology & Arts Blog, Nov. 4, 2010, Susuk Lim discusses a personal injury case in which "a Pennsylvania court not only concluded that information posted on one’s profile lacked protection, but that login credentials to the profiles themselves are not confidential." I've seen lots of articles about litigators using Facebook and other sites, but I hadn't seen discovery of the other party's passwords in order to read them. Interesting.

Wednesday, January 12, 2011

When Jurors Discriminate

When Jurors Discriminate is the jury tip of the month from jury consultant Harry Plotkin.

The best and only way to shift your jurors' focus away from your client and onto your case is to make your case, from opening statement to closing, about the jurors themselves, not your individual client. Only by persuading your jurors that this could have happened to anyone -- even the jurors themselves -- will you convince them to ignore how they feel about your client. Your jurors may not want to give your client justice, but no juror wants to deny themselves justice, even by proxy.

Monday, January 10, 2011

Law and the Brain

An intriguing conference, Law & the Brain: How Recent Advances in Neuroscience Impact the Law, will look at a number of topics in New York in March. Keynote presentations relevant to trial practice include:

  • Implications of Neuroscience for the Courtroom - Hon. Jed Rakoff, JD, United States District Judge for the Southern District of New York
  • False Memories and Witness Reliability - Elizabeth Loftus, PhD, Distinguished Professor; Professor, Psychology & Social Behavior; Professor Criminology, Law & Society; Professor, Cognitive Sciences; Professor, School of Law, Director, Center for Psychology & Law; Fellow, Center for the Neurobiology of Learning and Memory and Professor of Law, University of California, Irvine
  • Emotions, Memory and Bias: Implications for the Courts - Elizabeth Phelps, PhD, Professor of Psychology, New York University

Tuesday, January 4, 2011

Perfect storm hits legal aid

The National Law Journal reports on the funding crisis in legal aid around the country. Karen Sloan, Perfect storm hits legal aid, Nat'l L.J., Jan. 3, 2011. State and local government funding is down (often by a lot) and IOLTA funds are down. Federal funding is up a little, but not enough to make up for the losses.

Thursday, December 30, 2010

Defending Gary Ridgway

"The Green River Killer" killed dozens of women in South King County in the early 1980s. Despite intensive work by the King County Sheriff's Office, no one had been arrested. Until November 2001, when officers announced that they had him.

Defending Gary* picks up there, as Mark Prothero, a public defender away from his office, hears the rumor that someone has been arrested. One friend says that there's DNA evidence and speculates that Prothero will get the case, since he's "the DNA guy" in his office (Associated Counsel for the Accused).

Prothero became co-lead counsel, along with Tony Savage, a private lawyer whom the family hired. (Once Ridgway's house was sold to pay Savage's retainer, he was indigent and eligible for public defense.) The team eventually included eight lawyers, plus investigators and consultants.

With his client's permission to use confidential communications, Prothero tells a compelling story -- not just about a serial killer, but about how the legal team worked on his defense. Prothero was aided in his writing by Carlton Smith, an experienced journalist who had already written best-selling books about the Jon-Benet Ramsay case and even, years before, the Green River Killer case (The Search for the Green River Killer, 1991). And so the book has that page-turning, hard-to-put-down style of the best true crime writing.

What we don't have is a great courtroom drama. Why? Because this case never went to trial.

The prosecution has such good physical evidence on seven charged murders that the defense thought that the best way to save Ridgway's life would be to plea bargain to avoid the death penalty. And the prosecution had so little evidence on forty-some other murders that solving those crimes with Ridgway's confession would be worth the plea bargain.

And so defense and prosecution spent months observing detectives questioning Ridgway -- and the book gives a lot of detail about those interviews using official transcripts. Unlike the diabolically brilliant serial killers you sometimes see in movies, Ridgway was generally muddle-headed and inarticulate, but the detectives eventually got the details they needed to close a lot of cases and bring some closure to the families of the young women Ridgway had killed.

The handling of this mammoth case -- by prosecution, defense, and presiding judge -- was so good that the King County Bar Association honored all: Outstanding Lawyer: Prosecution and Defense Teams in the Gary Ridgway Trial, Bar Bull., June 2004; Outstanding Judge: Honorable Richard A. Jones, King County Superior Court, Bar Bull., June 2004.

Ridgway was in the news again last week: Auburn skull, bones ID'd as likely Green River victim, Seattle Times, Dec. 23, 2010. The newly discovered victim, Rebecca Marrero, was not among the 48 murders covered by Ridgway's guilty plea.

This book is in our Good Reads collection. As should be obvious, "Good Reads" doesn't mean "happy topics." It does mean interesting, compelling books, often on important issues, and this one fits the bill.

* Defending Gary: Unraveling the Mind of the Green River Killer, by Mark Prothero with Carlton Smith (2006), HV6533.W2 P76 2006 at Good Reads.
The publisher's page for the book includes a free excerpt.

Thursday, December 16, 2010

The New Jim Crow: Mass Incarceration in the Age of Colorblindness

The New Jim Crow book jacketIf this important and powerful book were a car, it would have the bumpersticker that says "IF YOU'RE NOT OUTRAGED, YOU'RE NOT PAYING ATTENTION."

In The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2009), Michelle Alexander describes War on Drugs juggernaut that has filled our prisons, mostly with people of color.

The statistics are staggering. In the last 30 years, the U.S. prison population went from about 300,000 to more than 2 million. Although President Reagan was the President who declared the War on Drugs (with the concomitant political and media rhetoric about the "scourge of crack"), the greatest increase in incarceration rates was during the Clinton Administration.

Is this a racial problem just because African Americans are more involved in drugs? No. Alexander cites study after study indicating that the percentage of people who use illegal drugs is about the same in all racial groups. Since drug users tend to get their drugs from dealers of the same race, there are plenty of white dealers. White teenagers are even a little more likely than black teenagers to deal drugs. Emergency room statistics show more whites than blacks with overdoses.

So why are most of the people in prison for drug use black? Alexander exposes the myriad ways the system works against them -- for example, law enforcement stopping people based on race, raiding black neighborhoods, and relying on informants who only know people of their own race; prosecutors exercising their discretion to "load up" charges to get plea bargains; inadequate public defender services; and mandatory minimum sentences and three strikes rules creating incredibly long sentences.

The damage lasts well beyond the prison term. Alexander devotes a chapter to all the ways that a felony record (even for possession of a few ounces of marijuana) can constrain a person's life: employment, housing, voting.

Alexander was at the law school last spring. In the law school's multimedia gallery, you can find a transcript of her presentation, as well as video and audio recordings.

The publisher's page about the book is here. The library's copy is at HV9950 .A437 2010 at Classified Stacks. (It's checked out as of this writing, but won't always be -- and it's available in other libraries, too.)

Tuesday, December 7, 2010

Should Jurors Use the Internet?

In Should Jurors Use the Internet? (National Law Review, Dec. 6, 2010), Gareth Lacy observes that stronger admonishments might be counterproductive: An instruction that "fails to explain why the 'system of justice' requires restricting access to outside information . . . will likely continue to feed jury -- and public -- mistrust for the legal system."

Responding to the assumption that any outside information would bias jurors, Lacy takes a look at some of the studies.

Researchers have also found that when juries learn substantial and contrary information from evidence and judicial instructions during trial, they are capable of displacing information received before trial. In other words, prior beliefs are diluted by new, relevant information. When trial evidence is strong, this can reduce the effect of bias and external information: "the effect of irrelevant, inadmissible, or biasing information is reduced in its effect to the degree that relevant, probative evidence is available for the jurors’ consideration." Again, this suggests that courts should manage the flow of information rather than make unrealistic efforts to weed out all juror expo­sure to the Internet.
(citations omitted). Lacy recommends some alternatives to finger-wagging admonishments:
Jurors are not going to stop looking at outside information. The best way to keep jurors away from Wikipedia would be to sequester them. But seques­tration is rarely practical on a large scale because it is prohibitively expensive and tends to promote mistrust for the jury system. A more realistic response would be for attorneys and courts to conduct advance Internet research to identify what information about their case is available online, analyze that information, and then deal with it during trial. Another realistic response would be to give jurors the tools they need to make informed decisions in court so they do not need to conduct outside research.
(citations omitted).

Gareth Lacy is a UW 3L. This article was a winner of the National Law Review's law student writing competition. Congrats, Gareth!

Washington's 3 Law Schools Launch Race & Crim Justice Task Force

The law schools at Gonzaga University, Seattle University, and the University of Washington are forming a Race and the Criminal Justice System Task Force in partnership with King County Superior Court Judge Steven C. González, the chair of the Washington State Access to Justice Board. An op ed piece by the schools' deans explains: George Critchlow, Mark Niles & Kellye Y. Testy, Ensuring the promise of "Equal Justice Under Law", Seattle Times Newspaper, Dec. 6, 2010.

Friday, November 19, 2010

Snitching: Criminal Informants and the Erosion of American Justice

Informants are an important part of criminal investigations and prosecutions. In exchange for leniency or other benefits, one criminal can provide information that helps to convict others. But the use of informants bears risks for the integrity of the system and the safety of the community. Alexandra Natapoff, a professor at Loyola L.A., explores the practice and recommends reforms in Snitching: Criminal Informants and the Erosion of American Justice (KF9665 .N38 2009 at Classified Stacks).

Rather than summarize, let me refer you to the detailed table of contents, the publisher's summary, and the introduction.
(In Snitching, Natapoff discusses only criminal informants. "Snitching" does not apply to the testimony of victims, bystanders, or other witnesses.)

Some of the problems discussed are familiar: snitches are unreliable; many wrongful convictions were based on testimony from informants; not all defendants have the same access to the benefits available to some informants. Natapoff also looks beyond criminal justice to look at the effect on poor, urban communities where a significant number of people are informing or being pressured to inform. Criminal justice may be the residents' dominant experience of government, and they see crimes that go unpunished (because the perpetrators cut deals); moreover, violence escalates.

I enjoyed the whole book, but if you have limited time, just read the recommendations in Chapter 8.

For more, see Natapoff's blog, Snitching.

One thing I appreciated in the book was the treasure trove of endnotes. Here are some of the intriguing sources Natapoff cites:


Do I have time to read all of these law review articles and books? Heck, no. But I might look some of them up sometime, and even knowing about them is worthwhile on some level. And since I've listed them here, maybe someone who reads this post will have a head start on some interesting and important research.

Holder reverses Bush policy on DNA waivers

Since 2004, the Justice Dept has had a policy encouraging prosecutors to have defendants who entered into plea bargains to waive their right to have DNA testing, even of new evidence. Now that policy has been reversed. Jerry Markon Attorney General Eric Holder reverses Bush policy on DNA waivers, Wash. Post. Nov. 18, 2010.

The Bush Administration opposed the Innocence Protection Act of 2004, Pub. L. 108-405, title IV, codified at 18 U.S.C. § § 3600, 3600A. And so after the law was passed, this policy was put in place.

Holder's memorandum is here.

Wednesday, October 27, 2010

Appellate Lawyer of the Week: Eric Schnapper, University of Washington Law School

The National Law Journal's website features Appellate Lawyer of the Week: Eric Schnapper, University of Washington Law School, Oct. 27, 2010. Prof. Schnapper, a veteran of Supreme Court practice, has three oral arguments coming up.

Tuesday, October 26, 2010

Free CLE on Wrongful Convictions

Friday Oct. 29, the UW School of Law presents a free CLE, Justice for Washington's Wrongly Convicted? The registration page says that the deadline for signing up was yesterday, but I'm told that there's still room. I'll be there -- will you?

Monday, October 25, 2010

Boys accused of violent robbery on bus may not be tried

Boys accused of violent robbery on bus may not be tried, Seattle Times, Oct. 25, 2010.

Two young boys accused of a violent robbery aboard a Metro Transit bus two months ago remain jailed — although it's still unclear whether either will face prosecution.

Because the boys are 10 and 11, King County prosecutors have to prove in court that they have the intellectual, moral and psychological development to fully understand the crime they're accused of committing. Before that determination can be made, their defense attorneys are collecting evidence, including having the boys meet with mental-health professionals, aimed at proving they are too young to be prosecuted.

County official pulled thousands of elderly residents from jury summons pool

County official pulled thousands of elderly residents from jury summons pool, The Daily News (Longview), Oct. 23, 2010.

An employee in the Cowlitz County Superior Court Clerk's office has been purging the names of people 80 and older from the local jury pool, raising questions about the fairness of recent trials, county officials said Friday.

The news has prompted the delay of several trials — including a murder trial - until authorities are sure that the jury pool has been restored to a full list of eligible jurors, the officials said.

Begining in July, the jury management clerk, Sue Anderson, removed the names from a master list of potential jurors in an effort to save money, officials said. But in doing so, she violated a key [tenet] of the justice system: that defendants are entitled to a trial by jury of their peers.

Monday, October 18, 2010

Justice for Washington's Wrongly Convicted?

The University of Washington School of Law is presenting a half-day program on wrongful convictions and the prospect of compensation for the exonerated. Justice for Washington's Wrongly Accused? will take place Fri., Oct. 29, 2010, 1:30-5:00 p.m.

Jack Hamann, author of On American Soil: How Justice Became a Casualty of World War II, is the keynote speaker, followed by Lara Zarowsky, policy staff attorney, Innocence Project Northwest, and a panel of three Washington who were exonerated after being imprisoned for crimes they did not commit.

The program has been approved for 2.75 CLE credits. It is free, but registration is required.

Judge and Parties OK with the Juror's Blog

A juror in Queens blogged about his experience, from waiting in the jury room, through the trial. Prof. John Clark, who teaches criminal justice at the Univ. of Texas at Tyler, came across the blog and alerted the court.A Juror’s Blog Chronicle Stirs an Age-Old Question, N.Y. Times, Oct. 17, 2010.

To Professor Clark, Mr. Slutsky’s blog posts clearly "crossed the line."

Jurors are not allowed to talk to one another about the case, "much less go on the World Wide Web and discuss it with everybody," he said.

No one involved in the case — the judge, the lawyers, the parties or Mr. Slutsky himself — found Mr. Slutsky’s blog entries troubling.

"I didn’t do anything wrong," said Mr. Slutsky, 61, of Flushing. "I didn’t blog about the actual case, just about the jury process. I specifically said in my blog that I’m not allowed to talk about the case."

Monday, October 11, 2010

Trial Tip from History (Lady Chatterly's Lover Trial, 1960)

We're coming up on the 50th anniversary of the trial of Penguin Books for publishing Lady Chatterly's Lover.

The prosecutor was Mervyn Griffith-Jones.

In his opening statement, he tried to defuse the antiquated impression he must have realized he made [in his wig and gown], assuring the jury they were not being asked to "approach this matter in any priggish, high-minded, super-correct, mid-Victorian manner."

He went on to pose a series of rhetorical questions, the last of which, in the judgment of many commentators, doomed his case. Supporting this judgment is a document the defense had prepared, now in the Penguin archives. It is a list of the members of the jury and alternates, including their occupations. Among them were driver, cabinet fitter, dock laborer, teacher, dress machinist, none, housewife, butcher, and timber salesman. It is amusing to imagine the reaction of, say, Robert F. Bowman, the driver, as Griffith-Jones asked his questions:

"Would you approve of your young sons, young daughters -- because girls can read as well as boys -- reading this book? Is it a book you would have lying around in your own house? Is it a book you would even wish your wife or your servants to read?"

There was a titter in the courtroom, immediately silenced by the judge.
Tip: If you're trying to seem like a regular bloke, it's best not to assume that everyone has servants.

The trial, in late October and early November 1960, included testimony by writers, professors, ministers, and others. On November 4, the jury took just three hours to return a verdict of not guilty and the book sold briskly. This victory for the publisher "did not mark an immediate end of literary censorship in Britain" - but the climate changed soon after. Ben Yagoda recounts this historic trial in Trial and Eros, Am. Scholar, Autumn 2010.

Tuesday, October 5, 2010

Litigation Not Just About Winning

Jules Lobel (Univ. of Pittsburgh and Center for Constitutional Rights) spoke yesterday afternoon on "Success Without Victory: Progressive Lawyering in an Era of Judicial Conservatism." He discussed not only his own career as a public interest lawyer but also the longer reach of history. Salmon P. Chase lost his cases on behalf of fugitive slaves before the Civil War, but the cases drew attention to the unjust situation and his arguments were published and circulated widely by abolitionists. Susan B. Anthony lost her case arguing for women's right to vote, but publicized her cause. Lobel says public interest lawyers should certainly try to win cases, but invites us to think beyond the outcome of any one case.

For more, see Jules Lobel, Success Without Victory Lost Legal Battles and the Long Road to Justice in America, K184 .L63 2003 at Classified Stacks. The publisher's description is here.

You might also be interested in this book Lobel edited: A Less Than Perfect Union: Alternative Perspectives on the U.S. Constitution, KF4550.A2 L47 1988 at Classified Stacks.

Saturday, October 2, 2010

Social Media in Court

The Conference of Court Information Officers conducted a nationwide study of how social media affects the administration of justice: New Media and the Courts: The Current Status and a Look at the Future (Aug. 26, 2010). It discusses these media:

  • social media profile sites (Facebook, Myspace, et al.)
  • microblogging (e.g., Twitter)
  • smart phones, tablets, and notebooks
  • monitoring and metrics
  • news sharing (blogs, RSS feeds, etc.)
  • visual media sharing (YouTube, Flickr, etc.)
  • wikis

Some of the findings (lifted from the executive summary, pp. 9-10):

  • About 40 percent of responding judges reported they are on social media profile sites, the majority of these on Facebook. This is almost identical to the percentage of the adult U.S. population using these sites.

  • Judges who are appointed and do not stand for re-election were much less likely to be on social media profile sites. About 9 percent from non-elected jurisdictions reported they were on these sites.

  • Nearly half of judges (47.8 percent) disagreed or strongly disagreed with the statement "Judges can use social media profile sites, such as Facebook, in their professional lives without compromising professional conduct codes of ethics."

  • Judges appear to be more comfortable with using these sites in their personal lives, . . .

  • More than half (56 percent) of judges report routine juror instructions that include some component about new media use during the trial.

  • A very small fraction of courts (6.7 percent) currently have social media profile sites like Facebook; 7 percent use microblogging sites like Twitter; and 3.2 percent use visual media sharing sites like YouTube.

  • A smaller proportion of judges than might be expected (9.8 percent) reported
    witnessing jurors using social media profile sites, microblogging sites, or smart
    phones, tablets or notebooks in the courtroom.

  • Almost all (97.6 percent) respondents agree that judges and court employees should be educated about appropriate new media use and practices.


Prof. Anita Ramasastry has written commentaries on Findlaw about many aspects of social media in the courts: