Newspaper access to litigation documents

[CASE] The San Diego Union-Tribune used California's Public Records Act to seek documents from litigation between former athletic department employees and San Diego State University. The trial court granted the request; on review, the Court of Appeals last week set aside part of the order but left in place the part compelling disclosure of deposition transcripts. Board of Trustees of California State University v. Superior Court, --- Cal. Rptr. 3d ---, 2005 WL 2219693 (Sept. 14, 2005), Find Result - 2005 WL 2219693.

• Does the Public Records Act's exemption of documents from pending litigation apply to correspondence between opposing counsel? Yes. The lower court's order compelling disclosure of some correspondence is set aside.
• Does it apply to depositions? No. The depositions are available to the public anyway under another statute (absent a protective order), so the parties have no expectation that they would remain private during litigation.
• Must trial judge conduct an in camera inspection before ordering disclosure of the document? No.

The most recent article I found in the newspaper (in an admittedly quick search) was from July 3: Trainer says Aztecs dump urine samples taken for drug screens.

Categories: depositions, sealed-records, public-records, sports, press, cases

NWIRP awards

[NEWS] At its annual gala Saturday evening, the Northwest Immigrant Rights Project honored:

• Gillian Dutton, Northwest Justice Project and director of the UW's Refugee and Immigrant Advocacy clinic, (Golden Door Award).
• Rep. Phyllis Gutierrez Kenney (Golden Door Award).
• Cozen O'Connor (Amicus Award). This firm's commitment is impressive. Immigration law is not one of the firm's regular practice areas, but about a third of the attorneys in the Seattle office have taken on asylum cases in cooperation with NWIRP -- 14 cases so far!

Categories: NWIRP, Cozen-O'Connor, Dutton, Kenney, UW, event

Trials vs. non-trial dispositions

[RESEARCH] Beyond the Vanishing Trial: A Look at the Composition of State Court Dispositions presents statistics on trends in state court trials, both civil and criminal.

As documented in “Examining Trial Trends in State Courts: 1976-2002,” the use of trials by the nation’s general jurisdiction courts has been declining over the past two decades.[1] From 1976 to 2002, jury trials decreased by 15 percent for criminal cases and 32 percent for civil cases, while bench trials declined 10 percent and 7 percent, respectively. This decline in trials took place at the same time as dispositions increased by over 100 percent for both case categories.

The phenomenon of the “vanishing trial” has prompted interest in the manner in which court cases are disposed and has led to varying theories as to why the use of trials is declining.[2] In anticipation of these discussions, the NCSC included in its State Court Disposition Trends database information on non-trial dispositions, and this article presents the first findings related to non-trial disposition trends in the state courts.

This is one article from the forthcoming "Trends Report" from the National Center for State Courts.

Categories: NCSC, statistics, empirical-studies

Outstanding lawyer awards to two Trial Ad lecturers

The June issue of the KCBA Bar Bulletin profiled recipients of KCBA's annual awards. Note our own Trial Ad lecturers, Felix Gavi Luna (Outstanding Young Lawyer) and Thomas W. Hillier II (Outstanding Lawyer).

Categories: KCBA, UW, Luna, Hillier

Advice for dealing with the press during litigation

[TIP] This month's issue of the KCBA's Bar Bulletin offers: Steve Boyer, The Proper PR Approach -- When Reporters Call on Litigation, the Riskiest Response is 'No Comment.'

(Note: next month, this September article will have a new link.)

Categories: press, tips

Ethics scholars: recusal on moral grounds inappropriate

As noted yesterday, twelve legal ethics scholars have written a letter to the Tennessee Supreme Court expressing their concerns about the practice of some judges to recuse themselves from all cases of juveniles seeking a judicial bypass of the parental consent requirement for abortions.

One the one hand, judicial recusal is ethically appropriate and perhaps required when a judge is convinced that his or her moral views render the judge unable to decide facts and law impartially in a particular case. Such instances occur rarely. However, the blanket use of recusal to avoid a particular category of unpopular cases is inappropriate, especially when coupled with a public statement or signaling of the reason for recusal by a judge acting individually or in apparent collective action with other judges. Such action is inconsistent with the judicial duty to decide cases assigned to the judge, undermines confidence in the judiciary’s commitment to uphold state law, stamps other judges unfairly with the charge that they approve of all laws that they implement, and puts pressure on other judges to follow suit in order to win reelection to the bench or to gain elevation to a higher court.

Thanks to Prof. Susan P. Koniak, one of the twelve scholars, for providing me with a copy of the letter.

Categories: recusal, judges, ethics, abortion, Koniak, news

On Moral Grounds, Some Judges Are Opting Out of Abortion Cases - New York Times

[NEWS] Because they are morally opposed to abortion, some judges in Tennessee are refusing to hear petitions from pregnant teenagers who seek, following statutory provisions, to bypass the parental consent requirement. On Moral Grounds, Some Judges Are Opting Out of Abortion Cases - New York Times

A group of twelve legal ethics scholars sent a letter to the Tennessee Supreme Court last month.

The experts called his action lawless and said they feared that his approach could spread around the nation and to subjects like the death penalty, medical marijuana, flag burning and even divorce.

"Unwillingness to follow the law," the letter said, "is not a legitimate ground for recusal."

A spokesperson for the court system said that the Tennessee Supreme Court would not act on the letter, but invited the professors to file a formal complaint with the Tennessee Court of the Judiciary.

According to the article, only four of the nine circuit judges in Shelby County (Memphis's county) will hear such petitions.

If the voters in one county disagree with the statewide legislature, then they could pressure elected judges not to enforce legislation, creating a situation where citizens in one county have access to safeguards unavailable in another.

Categories: judges, recusal, ethics, abortion, news

New DUI law tossed out by judges across state

Washington's 2004 statute on DUI evidence has met with varied reactions in the lower courts, generally negative. Now the Washington Supreme Court has agreed to hear a challenge. New DUI law tossed out by judges across state, Seattle PI, Aug. 5, 2005.

Defense attorneys say judges have kept hundreds, if not thousands, of breath tests out of court because of the flaws.

One potential problem with the new law is that it tells judges to "assume the truth" of the prosecutor's evidence -- often police officers' testimony -- and look at it "in a light most favorable to the prosecution or the department" in deciding whether breath-test results can be used in trial.

"What the Legislature is doing is essentially telling the judge who to believe in the courtroom," said attorney Ken Fornabai, who has challenged the laws in many suburban courts and will do so this month in King County District Court in Seattle. "It's sort of like having a crooked referee."
* * *
But Pamela Loginsky of the Washington Association of Prosecuting Attorneys, who will defend the law at the Supreme Court, said Washington has more stringent procedures than most states to make sure breath-test results are accurate, including a requirement to have the driver blow into the machine twice.

She said the new law simply makes it so that breath tests are treated the same way as other scientific evidence, such as DNA or fingerprints, in court.

The law is Laws of 2004, ch. 68. The part about making inferences in favor of the prosecution is in section 4(4)(b), codified at RCW 46.61.606:

(b) For purposes of this section, "prima facie evidence" is evidence of sufficient circumstances that would support a logical and reasonable inference of the facts sought to be proved. In assessing whether there is sufficient evidence of the foundational facts, the court or administrative tribunal is to assume the truth of the prosecution's or department's evidence and all reasonable inferences from it in a light most favorable to the prosecution or department.

The case, City of Fircrest v. Jensen, has not yet been set for argument.

Admissibility of out-of-state medical marijuana card

[CASE] At her trial for possession and manufacture of marijuana, the defendant was not allowed to introduce evidence of her California medical marijuana card. Division 2 affirmed.

First the court noted that the defendant had not included the California authorization in the appellate record and thus upheld the trial court's determination.

The appellate court nonetheless addressed whether a California doctor certification could meet the requirements of the Washington medical marijuana statute (RCW 69.51A.010). Answer? No -- so a Washington defendant could not be a "qualifying patient" under Washington law even if the California card had been admitted.

State v. Tracy, 115 P.3d 381 (Wash. App. July 12, 2005), Find Result - 2005 WL 1620315.

Is absence of criminal record admissible character evidence?

[CASE] A passenger's dispute with a bus driver led to police involvement, during which the passenger cursed and struck an officer. She was convicted of third-degree assault, obstructing a police officer, and resisting arrest. On appeal, she argued that the trial judge erred in excluding evidence that she had no criminal history. Division 2 affirmed. State v. Mercer-Drummer, --- P.3d ---, 2005 WL 1743891 (Wash. App. July 26, 2005) (published in part), Find Result - 2005 WL 1743891.

Rather than offering testimony from another witness that she was a "law abiding citizen," Mercer-Drummer attempted to testify herself to the absence of an arrest record. ER 405(a) requires the proof be by evidence of reputation. The trial court correctly excluded Mercer-Drummer's testimony based on this clear requirement.

In the unpublished part of the decision, the court addressed an argument that the officer who testified impermissibly expressed an opinion as to Mercer-Drummer's guilt. In describing the incident, the officer testified "That's when I was assaulted" and, later, "we're just trying to get her in cuffs, in custody, basically - for one, I was just assaulted." The court concluded that the officer's use of the word "assault" was merely descriptive and did not constitute an opinion as to the defendant's guilt with respect to the charge of "assault."

Judge Bridgewater dissented:

I respectfully dissent. The majority follows the opinion in State v. O'Neill, 58 Wash.App. 367, 793 P.2d 977 (1990), in upholding the trial court's decision to exclude the testimony by the defendant as to her good character. I would follow the well-reasoned dissent in O'Neill because I agree that "the character of being law abiding is pertinent to rebut any criminal charge." * * * I agree that a "criminal defendant has a constitutional right to testify in his own defense as to his character for law abidingness as incident to his Sixth Amendment rights under the United States Constitution and article 1, section 22 of our constitution." * * * I would reverse and remand for a new trial.

Ressam judge decries U.S. tactics

[NEWS] Last week, Judge John Coughenour sentenced Ahmed Ressam, the man convicted of attempting to bomb LAX, to 22 years in prison. Judge Coughenour commented that the trial showed the the U.S. legal system can try terrorist -- contrary to those who argue for secret tribunals, prolonged detention, and so on. The Seattle Times: Ressam judge decries U.S. tactics

Judge Coughenour said:

I would like to convey the message that our system works. We did not need to use a secret military tribunal, or detain the defendant indefinitely as an enemy combatant, or deny him the right to counsel, or invoke any proceedings beyond those guaranteed by or contrary to the United States Constitution.

I would suggest that the message to the world from today's sentencing is that our courts have not abandoned our commitment to the ideals that set our nation apart. We can deal with the threats to our national security without denying the accused
fundamental constitutional protections.

Despite the fact that Mr. Ressam is not an American citizen and despite the fact that he entered this country intent upon killing American citizens, he received an effective, vigorous defense, and the opportunity to have his guilt or innocence determined by a jury of 12 ordinary citizens.

Most importantly, all of this occurred in the sunlight of a public trial. There were no secret proceedings, no indefinite detention, no denial of counsel.

The tragedy of September 11th shook our sense of security and made us realize that we, too, are vulnerable to acts of terrorism. Unfortunately, some believe that this threat renders our Constitution obsolete. This is a Constitution for which men and women have died and continue to die and which has made us a model among nations. If that view is allowed to prevail, the terrorists will have won.

It is my sworn duty, and as long as there is breath in my body I'll perform it, to support and defend the Constitution of the United States.

Transcript (on Seattle Times website). For a profile of Judge Coughenour, see Seattle Times: Maverick who speaks his mind.

Swearing to tell the truth -- on what book?

[NEWS] The North Carolina statute provides that witnesses should place their hand on "Holy Scriptures," but what counts? A court ruled that only the Bible counts and a Muslim could not swear on the Quran. The ACLU is challenging that decision. ACLU Sues Over Court Oaths - Raleigh Durham News & Observer, July 27, 2005.

Non-believers may affirm that they are telling the truth instead of using Holy Scriptures. The problem is when people of non-Christian faiths want to use the scriptures that are holy to them. Interestingly, the law was changed to "Holy Scriptures" in 1985 -- in its earliest version (1777) the oath was to be administered upon "the Gospels."

(By the way, I got the lead to this story from How Appealing, a blog well worth watching for comments on appellate litigation and general legal news.)

Filed in: witnesses, Bible, Quran, ACLU, How-Appealing

New evidence casebook

[BOOK] Prof. Peter Nicolas has written a new casebook on evidence: Evidence: Problems, Cases and Materials. According to the publisher's description,

This new casebook provides a comprehensive, problem-based approach to the rules of evidence. Organized around the federal rules of evidence, this casebook is more comprehensive than most in that it provides coverage of every single rule of evidence, down to the most obscure exceptions to the hearsay rule. Yet, through careful case choice and editing, Nicolas has produced a book that can easily be taught from cover-to-cover in as few as three semester hours.

Key features of the casebook include 89 in-depth problems that are designed to teach all the nuances of the rules, an enriched section on scientific evidence, application of the rules to electronic evidence, and appellate review of evidentiary rulings. In addition, the casebook incorporates the Supreme Court’s recent Confrontation Clause decision in Crawford v. Washington, as well as pending proposed changes to Rules 404, 408, 606, and 609.

The book is currently on Course Reserve (for the summer school Evidence Course), at KF8934 .N53 2005. When it's not on Course Reserve, it will be available in the Classified Stacks.

Filed in: evidence, books, Nicolas, UW

Admissibility of criminal defendants' taste in entertainment

[RESEARCH] Should the prosecution be able to use evidence that a defendant listens to gangsta rap or death metal, plays violent video games, or reads gruesome books? In a recent law review article, Prof. Helen A. Anderson examines the different treatment of producers of these works (when sued civilly or censored in some way) and the consumers of the works (when tried for violent crimes). The producers are protected by the First Amendment -- but First Amendment arguments are not always even raised on behalf of the consumers.

Helen A. Anderson, The Freedom to Speak and the Freedom to Listen: The Admissibility of the Criminal Defendant's Taste in Entertainment, 83 Or. L. Rev. 899 (2004).

Prof. Anderson recommends:

The First Amendment does not erect a barrier to the admission of relevant evidence, but neither should it be completely trodden underfoot whenever the state seeks to introduce evidence of a defendant’s taste in books, movies, or music. Where such evidence is likely to be extremely prejudicial, as it will always be when the state seeks to tie violent entertainment to the crime, courts should require more than a mere similarity between the crimes depicted and the crime charged. In addition, reviewing courts should not give trial courts broad discretion to determine whether the defendant’s constitutional rights are affected; constitutional issues should be reviewed de novo as questions of law. Finally, courts should engage in harmless-error analysis cautiously.

Id. at 936.

Prof. Anderson observes that producers and consumers may have been treated differently with respect to these First Amendment issues because of resource disparities. An entertainment corporation defending a suit may hire teams of expensive lawyers while most criminal defendants are represented by public defenders with overwhelming caseloads. It shouldn't be surprising then that the criminal cases don't have the constitutional issue briefed fully.

Prof. Anderson states that "better lawyering, beginning with timely and accurate objections, could go far toward changing the outcome with respect to consumption evidence in criminal trials." She hopes that the article "will help to alert defense counsel to the First Amendment issues at stake." Id. at 942.

Filed in: evidence, first-amendment, entertainment, criminal-law, Anderson, UW

Advice for clients: dress conservatively in court

[TIP] "Dressing for court appearances not a casual affair" says the Benton County (Arkansas) Daily Record. The article includes some amusing and illustrative anecdotes, including the story of a witness in a battery case who was held in contempt for wearing a T-shirt that said "Wanna raise some hell?" on the front with "Hell Yeah!" on the back.

Filed in: clothing, tips, witnesses

Day on Torts: Flow Sheet for Handling a Personal Injury Case

[TIP] Tennessee lawyer John Day offers a Flow Sheet for Handling a Personal Injury Case.

Filed in: personal-injury, tips, Day

How to Screen Cases

[TIP] Here's a simple three-part test from the South Carolina Trial Law Blog: How to Screen Cases.

And, speaking of evaluating cases, here's a tip from the Illinois Trial Practice Weblog on evaluating class actions: Evaluation of Potential Class Actions: Is There a Way to Settle the Case?

Filed in: tips, practice-of-law, South-Carolina-Trial-Law-Blog, Illinois-Trial-Practice-Weblog

Duffy Graham: The Consciousness of the Litigator

[BOOK] In The Consciousness of the Litigator (KF306 .G724 2005 at Reference Area), Duffy Graham

examines the moral consciousness of the litigator * * * and explores the role of the lawyer in American political and social life and in the judicial process and plumbs his understanding of himself, his work, and especially his sense of right and wrong.

The publisher suggests that this book should be "a must-read for the many law students, scholars, and practicing litigators who struggle to reconcile ethical questions with the dictates of their highly commercialized professions."

University of Michigan Press description.

Filed in: books, ethics, practice-of-law, Graham

Law students undertake Titanic trial

Last week ten students at Baylor presented a mock trial in which families of victims sue the Titanic's owner, its builder, and the manufactuer of its radio equipment. The mock trial culminated a required trial practice class. Law students undertake Titanic trial, Waco Tribune-Herald. A press release from the law school has more information about the class.

The Waco newspaper stated: "The U.S. and British governments conducted inquiries into the sinking, but no lawsuits went to court." That's not exactly right. In fact, there was a bench trial in the U.S. (settled after closing arguments) and a jury trial in England. (Before the U.S. trial, there was litigation, up to the U.S. Supreme Court, over whether the U.S. Limitation of Shipowners' Liability Act applied to a foreign-flagged vessel. The Supreme Court held that it did.) See Robert D. Peltz, The Titanic's Legacy: The History and Legal Developments Following the World's Most Famous Maritime Disaster, 12 U.S.F. Mar. L.J. 45, 51-58 (1999-2000).

Even if it's not true that there were NO trials related to the Titanic, it's certainly safe to say that there was nowhere near the litigation there would have been today -- and the lawyers certainly didn't use the computer simulations the Baylor students used.

Much of the litigation over losses arising from the TITANIC disaster was filed in the United States. It has been estimated that the total claims actually filed for loss of life and property damage amounted to only $16 million, which would be the equivalent of over $275 million today. Had the disaster occurred today, potential claims would certainly total much more than $275 million. The relatively low figure can be explained by differences in attitudes toward litigation for personal injuries and wrongful death in 1912 and today. Most socially prominent families of the time thought it demeaning to "put a price tag on a gentleman's life." For example, the Astor, Widener, Guggenheim, and Strauss families filed no claims for the deaths of these extremely wealthy and prominent men. While the Thayer family filed a claim for their lost luggage, they did not file a claim for the death of John Thayer. The widow of Broadway producer Henry B. Harris filed the largest claim, in the amount of $1 million.

Id. at 51-52 (footnotes omitted).

Filed in: event, mock-trials, famous-trials, Titanic, Baylor, Peltz

The Supreme Court Nomination Blog

[NEWS] Justice Sandra Day O'Connor has announced her retirement. For commentary and useful links (e.g., to interest groups' reactions), see
The Supreme Court Nomination Blog, hosted by Goldstein & Howe, a DC law firm specializing in Supreme Court litigation.

For a more irreverent look at Justice O'Connor (and federal courts generally), see Underneath Their Robes.

Filed in: SupremeCourt, judicial-selection, O'Connor, Supreme-Court-Nominations-Blog, Underneath-Their-Robes,