How Many Trials?

[RESEARCH] I wondered: how many trials are taking place in Washington Courts? Of those, how many take place here in King County? Are there more or fewer than a few years ago?

So I spent a little time looking at the caseload reports from the Washington Courts. In these, you can find all sorts of data about filings, dispositions, nature of cases, and more. Here are just a few statistics:

Filings and trials in the superior courts in 2004

• Filings

Criminal: 48,161 (up 13% from 2000)
--- King County: 10,209
Civil: 128,009 (up 21% from 2000)
--- King County: 39,309
Domestic Relations: 37,703 (down 1% from 2000)
--- King County: 7,507

• Trial Proceedings

Criminal: 2,207 (down 11% from 2000)
--- King County: 537
Civil 1,462 (down 15% from 2000)
--- King County: 342
Domestic Relations: 2,563 (about the same as 2000)
--- King County: 814

So just a small slice of the cases filed actually go to trial. (Of course, you need to know about trial practice even if your case doesn't go to trial. Settlement negotiations and motions practice are shaped by how you think the case would play out if tried.)

Trials in the Courts of Limited Jurisdiction in 2004

• Jury Trials

Civil trials set: 681; civil trials held: 78
--- King County: 145 civil trials set; 22 civil trials held
All trials set: 97,212; all trials held: 2,999
--- King County: 15,315 trials set; 884 trials held

• Non-jury Trials

Civil trials set: 4,886; civil trials held: 1,717
--- King County: 1,157 civil trials set; 325 civil trials held
All trials set: 23,158 civil trials set; all trials held 6,956
--- King County: 3,776 trials set; 1,623 held

OK, all those numbers are pretty dense. Try these:

• Just over 1% of civil cases filed in superior court go to trial!
• Less that 5% of criminal cases filed in superior court go to trial!
• Almost a quarter of the felony trials (i.e., criminal trials in
  superior court) in the state are in King County!
• 70% of the trials in the courts of limited jurisdiction are non-jury trials!

Categories: statistics

ABA - Tort Trial & Insurance Practice Section

Interested in personal injury law? Consider TIPS, the ABA's Tort Trial & Insurance Practice Section. Law students, if you belong to the ABA, then you can join the section free.

Some of the content on the section's website is limited to members. One freebie is TortSource, a newsletter that

highlights topical tort and insurance law issues and includes technology advice, practice tips and updates on continuing legal education programming. "When I Was A Young Lawyer," "Legislative Update," "In Motion" and a host of other unique columns round out each issue of this quarterly newsletter.

The summer 2005 issue had two pieces about appeals -- how to preserve issues for appeal and, once you get an appeal, oral argument advice for trial attorneys. Fall 2005 has a piece called "Let the Jury Draw the Conclusion":

The juror who comes to an independent conclusion will hold on to that deduction much more tenaciously than will a juror who is told what to think and decides to think that way only because that is what the lawyer said to do. * * * [Jurors who reach their own conclusions will] will listen more closely for the facts, analogies, and argument that support the conclusion and allow them to defend it in the jury room.

The fall issue also has several pieces about developments in employment law.

For discussion of policy questions, see the TIPS Task Forces. For example, the Task Force on Contingent Fees has a 66-page Report on Contingent Fees in Medical Malpractice Litigation (draft, Sept. 20, 2004)

The Emerging Issues Committee has a list of emerging issues, with some links to press releases, letters, etc. Students, looking for a paper topic?

Categories: ABA, tips, appeals, med-mal, attorney's-fees, empirical-studies,

Is it good to be considered a pit bull in the courtroom?

The Florida Supreme Court has sanctioned two attorneys for using a pit bull in their advertising (and in their phone number, 1-800-PIT-BULL) because the ads "demean all lawyers and thereby harm both the legal profession and the public's trust and confidence in our system of justice." Florida Bar v. Chandler.

Carolyn Elefant has a post on MyShingle (her blog for solo practitioners) (that's where I got the link to the case -- thanks!). My Shingle: An Ethics Decision for the Dogs She includes ads from a firm that uses a Golden Retriever and an elephant and wristwatch with Georgetown's cartoon bulldog. Demeaning? She concludes "What a silly decision." There are several interesting comments, at least one defending the court's position.

Before going to MyShingle, I'd looked for a news story about the case. (I saw an AP snippet over the weekend.) One of the first things I found was:

Ed Gillespie was called ''President Bush's pit bull'' during the 2004 presidential campaign, when as chairman of the Republican National Committee he seemed to live on cable television trading snarls with Terry McAuliffe, his attack dog of a counterpart at the Democratic National Committee.

New York Times, July 6, 2005. (If you Google Gillespie pit bull, you'll see a bunch of examples.) It doesn't seem that he minds this -- or that Republicans as a whole feel demeaned because the chairman of the Republican Party has that nickname. It's ironic, because during the heat of the presidential campaign, it seemed that "trial lawyer" was used as an insult, but "pit bull" was a term of respect.

PS As a UW Husky, I considered finding dog images to match Elefant's Georgetown bulldog, but time is short. Go Dawgs.

PPS (Nov. 27) David Giacalone at f/k/a ethicalEsq offers a more current example of "pit bull" as a compliment for a Republican: President Bush's description of Harriet Miers as "a pit bull in size 6 shoes."

Categories: MyShingle, practice-of-law, advertising, dogs, cases

Specialized courts vs. juries

[POLICY] Are some cases too complex factually for a jury of ordinary citizens to sift through? Or is the American jury the best factfinder for all sorts of cases? Would we get "better" results if we had professional factfinders for patent cases? How about medical malpractice cases?

An article in the Oregon State Bar Bulletin discusses the issue, with quotations from a jury consultant, a plaintiff's attorney, and intellectual property experts. Janine Robben, Who Decides? Specialized Courts vs. the Jury of Peers, April 2005.

Categories: juries, specialized-courts, IP

WSBA considering amicus brief in case re DNA evidence gathering

[CASE] Twenty years after a 13-year-old girl was found raped and murdered, the police tried to match up DNA evidence with a suspect (the man who had been the boyfriend of the girl's older sister). They sent a letter to the defendant (he was then living in New Jersey), on the letterhead of a fictitious law firm, inviting him to join a fictitious class action. When he replied, they obtained enough saliva from the envelope he'd licked to match the DNA sample.

The Washington State Bar Association has been asked to write an amicus brief in the defendant's appeal to the Washington State Supreme Court, State v. Athan. The amicus committee recommends that "the appropriate issue to be addressed by the WSBA is the detrimental effect on the bar and the administration of justice if police are allowed to falsely pose as lawyers." The Board of Governors invites comments, and will decide at its next meeting, December 9-10. For more information see Notice of Request for WSBA to File Amicus Curiae Brief.

Categories: State-v-Athan, WSBA, DNA, practice-of-law,

Making the Leap From PI to IP

[NEWS] Since Texas has enacted tort reform measures, some personal injury firms are moving into intellectual property litigation. Here's a profile of a firm in Marshall, TX, home of the Eastern District of Texas, a court with a reputation for being friendly toward patent plaintiffs (in both bench and jury trials). law.com - Making the Leap From PI to IP, IP Law & Business, Nov. 14, 2005.

Categories: personal-injury, IP, tort-reform, practice-of-law,

Application of rape shield statute to exclude victim's email message

[CASE] A recent case raises several issues about the trial of a juvenile as an adult. Here I'd like to highlight the final issue discussed in the case: whether it was error for the trial court to exclude an email message from the victim.

The defendant (Posey) and the alleged victim (H.A.H.) were high school classmates. Prior to or around the time the met Posey, H.A.H. wrote an email message to someone else describing some rape fantasies and saying she would like a boyfriend to choke her and beat her. The police made copies of emails from the H.A.H.'s computer. The defense wanted to introduce this one to show that H.A.H. consented to the violence and intercourse with Posey and to rebut her claim that she was afraid of him.

The trial court found that the email was highly prejudicial. The court noted that "[a]nybody who's had an e-mail correspondence with anybody knows it's easy to say things during that correspondence that you wouldn't necessarily say to their face."

After discussing limited situations when a victim's past sexual history can be admitted despite the rape shield statute (RCW 9A.44.020), Division 3 found that the trial court did not abuse its discretion in excluding the email.
Find Result - 2005 WL 2982134

Categories: email, rape-shield, evidence, cases,

Ineffective asstance of counsel claims fail - discussion of defense counsel's trial tactics

[CASE] In an appeal of child molestation convictions, the defendant raised claims of ineffective assistance of counsel that give an interesting view of the defense counsel's trial tactics. State v. Cramer, 2005 WL 2858884 (Wash. App. Div. 2, Nov. 1, 2005) (unpublished), Find Result - 2005 WL 2858884.

Cramer contends that his trial counsel was constitutionally ineffective for several reasons. Primarily, he points to counsel's decision to cross-examine R.C. in a highly confrontational manner, which, by Cramer's account, could serve only to engender hate for Cramer in the jurors' minds. Cramer also maintains that his counsel was ineffective because he elicited unfavorable testimony; was repeatedly rebuked by the trial court for using improper impeachment procedures; failed to object to improper closing argument by the State; and acted unprofessionally in the courtroom.

I was particularly interested in the first issue -- the aggressive cross-examination of the child victim. The cross seemed to be so hard on the girl that the trial judge ordered the lawyer to do his questioning seated:

[T]his is my problem, sir, and this is why I told you to sit down, is that this witness is breaking down on the stand. I do not believe that badgering this witness is going to succeed for either side. If anything, if you look at your jury, they're tuning out this part of the testimony because they can't stand to watch this child go through that.

Not only did the questioning appear to be hard on the girl, but the defendant's reaction to it also made an impression on the judge. During sentencing, he told the defendant:

This child was on the stand for three hours, approximately. You know what really affected me about that testimony? Not so much what she said, but how you didn't react to it. You had absolutely zero expression while your attorney scathed her on the stand, skewered her six ways to Sunday.

And I'm thinking of those moments where he goes, [']You see your transcript. At this time and this place you said this?['] Trying to trip up this little girl. Okay. He did his job. But she broke down as a result of it. Okay.

But you didn't react, sir. And that really bothered me that a father, a biological father wouldn't react to that, seeing his own child put through that kind of torture.

On the ineffective assistance of counsel claims, the court concluded:

This court will rarely sustain an ineffective assistance claim where the 'entire record' on appeal 'reflects a vigorous and competent defense.' * * * Cramer received such a defense. This is reflected not only in the trial transcript, but in a record that contains detailed motions for discovery, continuance, a bill of particulars, dismissal, an arrest of judgment, and a new trial. Defense counsel's tactical decisions in representing Cramer did not constitute ineffective assistance. Were we to hold otherwise, such tactical decisions would be the norm with defense counsel intent on creating error for redress on appeal.

Categories: ineffective-assistance, cross-examination, child-witnesses, impeachment, cases,

Families fight at murder sentencing in Tacoma

[NEWS] On Thursday there was a scuffle between the families of a murder victim and his killer, sparked by a remark that the sentence was unfairly long, since the victim was 69 years old and "wasn't going to live forever." Families fight at murder sentencing in Tacoma, Seattle PI, Nov. 10, 2005.

Categories: sentencing, news,

Convicted rapist tells judge he's rude

[NEWS] Here's a courtroom incident from Georgia: Convicted rapist tells judge he's rude, Seattle PI, Nov. 11, 2005. The defendant's outburst got him an extra 5 days on his sentence (which was already 99 years plus two life sentences).

Categories: sentencing, judges, news,

Language Barriers to Justice

Last week, I had a brief post about working with interpreters. Today I came across Language Barriers to Justice in California, a report of the California Commission on Access to Justice (Sept. 2005).

Some facts from the executive summary:

• "40 percent of the state’s population speaks a language other than English in the home."
• "Nearly seven million Californians cannot access the courts without significant language assistance, cannot understand pleadings, forms or other legal documents, and cannot participate meaningfully in court proceedings without a qualified interpreter."
• "The right to have a state-funded interpreter in a criminal proceeding has long been recognized by the courts; however, in most civil proceedings — even those affecting fundamental rights — California does not recognize the right to an interpreter, and there are not adequate funds to pay for interpreters."
• "In recent years, demand for interpreter services has grown steadily while the number of interpreters available to meet that demand has dropped by more than 35 percent."

The commission recommends:

• adoption a comprehensive language access policy for courts.
• "specific plans designed to achieve the goal of guaranteeing such access, including adequate funding to provide for qualified interpretation and translation services; access to standard court documents (such as forms and instructions) in, at a minimum, those languages spoken by a significant number of the population using court services; and training and resources to assist court staff, administrators and judges in identifying and addressing language issues."
• setting up training packages and model protocols for court staff to implement the policies.
• reevaluating the system for training and certifying interpreters.
• evaluating "the role of lawyers and bar associations, legal services programs, law schools and law libraries."
• compiling data and conducting further research.

Categories: interpreters, access-to-justice

Direct examination tips

[TIP] The ABA's Section of Litigation offers "Tips from the Trenches.", currently "Old Dogs and new Tricks for Direct Examination," adapted from the Spring 2005 issue of Litigation:

One of the keys to improving our skills is to consider alternative forms of direct. Whether we adopt them in all cases, only with particular witnesses, only in particular cases, or not at all, the process of challenging, rethinking, and revalidating or modifying our direct examination techniques will make us better trial lawyers.

One interesting technique is using a series of short, very controlled questions to emphasize key points that might be missed if the witness gives a narrative answer in a paragraph.

Feb. 27, 2006: Since the current tip changes, the link no longer connects to this article. The old tips are archived -- but only for members. You can check out whatever the current tip is anytime.

Categories: ABA, tips, direct-examination

Congress passes law limiting civil actions against gun manufacturers, dealers, or importers

[LEGISLATION] Yesterday Congress passed and sent to the President the Protection of Lawful Commerce in Arms Act, S. 397. If signed, the law will limit civil actions against gun manufacturers and dealers in state and federal courts.

The legislative findings are:

(1) The Second Amendment to the United States Constitution provides that the right of the people to keep and bear arms shall not be infringed.

(2) The Second Amendment to the United States Constitution protects the rights of individuals, including those who are not members of a militia or engaged in military service or training, to keep and bear arms.

(3) Lawsuits have been commenced against manufacturers, distributors, dealers, and importers of firearms that operate as designed and intended, which seek money damages and other relief for the harm caused by the misuse of firearms by third parties, including criminals.

(4) The manufacture, importation, possession, sale, and use of firearms and ammunition in the United States are heavily regulated by Federal, State, and local laws. Such Federal laws include the Gun Control Act of 1968, the National Firearms Act, and the Arms Export Control Act.

(5) Businesses in the United States that are engaged in interstate and foreign commerce through the lawful design, manufacture, marketing, distribution, importation, or sale to the public of firearms or ammunition products that have been shipped or transported in interstate or foreign commerce are not, and should not, be liable for the harm caused by those who criminally or unlawfully misuse firearm products or ammunition products that function as designed and intended.

(6) The possibility of imposing liability on an entire industry for harm that is solely caused by others is an abuse of the legal system, erodes public confidence in our Nation's laws, threatens the diminution of a basic constitutional right and civil liberty, invites the disassembly and destabilization of other industries and economic sectors lawfully competing in the free enterprise system of the United States, and constitutes an unreasonable burden on interstate and foreign commerce of the United States.

(7) The liability actions commenced or contemplated by the Federal Government, States, municipalities, and private interest groups and others are based on theories without foundation in hundreds of years of the common law and jurisprudence of the United States and do not represent a bona fide expansion of the common law. The possible sustaining of these actions by a maverick judicial officer or petit jury would expand civil liability in a manner never contemplated by the framers of the Constitution, by Congress, or by the legislatures of the several States. Such an expansion of liability would constitute a deprivation of the rights, privileges, and immunities guaranteed to a citizen of the United States under the Fourteenth Amendment to the United States Constitution.

(8) The liability actions commenced or contemplated by the Federal Government, States, municipalities, private interest groups and others attempt to use the judicial branch to circumvent the Legislative branch of government to regulate interstate and foreign commerce through judgments and judicial decrees thereby threatening the Separation of Powers doctrine and weakening and undermining important principles of federalism, State sovereignty and comity between the sister States.

The NRA issued a news release calling the law a "historic victory." On the other hand, the Brady Campaign to Prevent Gun Violence had news releases terming the bill a "step backwards" and announcing that it would challenge its constitutionality if enacted.

Categories: firearms, torts, legislation, NRA, Brady-Center

Seattle Municipal Court hosts interpreter conference

[EVENT] The Seattle Municipal Court just hosted the Interpreter Consortium Conference, along with the National Center for State Courts, Oct. 15-19.

The news release says:

Seattle Municipal Court provides language and sign interpreters for over 60 different languages and dialects for hearings before the court and during proceedings. Interpreter services schedule with contract interpreters for an average of 420 hearings per month.

Wow.

[TIP] What should trial lawyers think about when working with interpreters? Here are some tips:

• Angela McCaffrey, Don't Get Lost in Translation: Teaching Law Students to Work with Language Interpreters, 6 Clinical L. Rev. 347 (2000).
• Seattle University Access to Justice Institute, Language Bank Attorney/Agency Information (includes links to "Important Tips to Remember When Working with Interpreter," "What the Interpreter Would Tell You," "In the Interview," and "Rules Regarding Telephonic Interpretation").
• Isabel Picado, An Attorney's Primer: Working with Interpreters, Proteus: Newsletter of the Nat'l Ass'n of Judiciary Interpreters and Translators, Winter-Spring 2000 (includes examples of ambiguities in English-Spanish translations).
• Maine Center on Deafness, Representing Deaf Clients: What Every Lawyer Should Know (July 30, 2004).
• FAQs on Interpreting from the Southern District of New York.

Categories: interpreters, King-County, event, tips

Judge accused of violating defendants' rights | TheNewsTribune.com | Tacoma, WA

[NEWS] The Commission on Judicial Conduct has filed a complaint against King County District Court Judge Mary Ann Ottinger (Issaquah). The complaint alleges that she denied the rights of 12 defendants, often by not advising them of their right to an attorney. Judge accused of violating defendants' rights | TheNewsTribune.com | Tacoma, WA.

The CJC's website has some documents in the case (but not the complaint), as well as the 2004 Stipulation, Agreement and Order of Reprimand in a 2004 case against Ottiger.

Categories: Commission-on-Judicial-Conduct, judges, right-to-counsel, Ottinger, news

Juror Stress

[RESEARCH] Is being on a jury stressful? Yes, in many ways -- from the disruption of one's daily routine to the burden of making a decision about someone's life or property. In a new article, two professors in psychology and law survey the research and outline possible responses. Monica K. Miller & Brian H. Bornstein, Juror Stress: Causes and Interventions, 30 T. Marshall L. Rev. 237 (2004), Find Result - 30 THUMARLR 237.

One intervention is debriefing -- and sometimes counseling -- particularly after a trial with upsetting testimony and evidence such as the Jeffrey Dahmer trial. One interesting question is whether offering such help to jurors would skew verdicts. If jurors in a capital case knew that counseling would be available, would they wrestle less with the magnitude of the decision to impose the death penalty?

The authors "discuss a variety of procedural changes (e.g., allowing jurors to take notes) courts can make" that would alleviate some stress -- e.g., the stress of dealing with complex testimony.

The final section of the article

concludes that, because jurors serve such an important function in our justice system, it is important that measures be taken to protect them from serious harm due to the stresses of jury duty. We suggest a two-phase intervention that includes a pre-trial video that prepares jurors for the stresses they may experience and a variety of post-trial interventions tailored to the needs of each individual juror.

This reminds me of my own reactions to jury duty. The last time I served it was in municipal court, and I was glad both that it was only four days away from my job and that the case was only possession of stolen property -- not a case with lots of upsetting or tragic facts.

Categories: debriefing, juries

Driving While License Suspended conviction reversed - insufficiency of evidence

[CASE] Criminal defendants often argue on appeal that the evidence was insufficient. Here is one of the rare successful times. Defendant was convicted of driving while his license was suspended or revoked in the first degree (RCW 46.20.342(1)(a)). That offense requires that the person driving had had his or her license suspended as an "habitual offender" under RCW 46.65. In this case, the prosecution introduced evidence that the license had been suspended, but not evidence about why it was suspended. The defendant's statement on the stand "I'm suspended in the first degree" was not enough to show that element. State v. Smith, --- P.3d ---, 2005 WL 2386250 (Wash. Sept. 29, 2005), Find Result - 2005 WL 2386250.

By the way, this case also has a reminder to preserve issues for appeal -- the Supreme Court did not address a hearsay argument about the license revocation record because defense counsel had not done so.

Categories: criminal-law, sufficiency-of-evidence, appeals, cases

Mixed up jury instructions lead to reversal in part

[CASE] The defendant was convicted of unlawful possession of a firearm, attempting to elude police vehicle (RCW 46.61.024), and other offenses. The eluding count had a firearm enhancement (RCW 9.94A.533).

Here's the mix-up: Count I of the information charged him with possession of a 9 mm handgun and Count II charged him with possession of a .22 caliber handgun -- but both the defense attorney and the prosecutor reversed them in closing argument. And the jury instructions said that to convict on Count I, the jury must find that he had a .22. Not only that: the prosecutor conceded in closing argument that there was insufficient evidence to convict with respect to the .22 and asked the jury to acquit on that count. The jury convicted on Count I and acquitted on Count II.

What now? The trial court found that the conviction could stand because the mistaken jury instruction was a clerical error (see CrR 7.8). On appeal, Division 2 held that it was not a clerical error but a judicial error, and reversed. State v. Rooth, --- P.3d ---, 2005 WL 2361790 (Wash. App. Sept. 27, 2005)(published in part), Find Result - 2005 WL 2361790.

The court upheld the firearm enhancement to the conviction for eluding a police officer, finding that there was sufficient evidence that the driver had a firearm.

The unpublished portion of the case discusses more evidentiary and procedural issues, including alleged ineffective assistance of counsel (among other things, for chewing tobacco), prosecutorial misconduct, and improper opinion testimony.

Categories: jury-instructions, firearms-enhancement, cases

U.S. Judicial System: Selected Websites

On Thursday, the UW law school hosted a group of international visitors who are in the U.S. as part of the State Department's International Visitor Leadership Program and hosted in Seattle by the World Affairs Council.

The 16 visitors were lawyers, government officials, and judges from 15 countries, interested in all aspects of the U.S. judicial system. On Friday they were going to the Seattle Immigration Court and to a King County Drug Diversion Court.

It was an interesting group – coming from places as diverse as Bhutan and Israel, Tunisia and the India – and I enjoyed talking with them about legal education and our legal system.

The group had asked for information about LexisNexis and about sources for continuing their study of the U.S. judicial system once their visit to the U.S. is over. So during my time with them I gave them a demo and showed them a variety of sites they might find helpful. Trial ad folks might also find the sites useful, so here's the guide we posted for the visitors: U.S. Judicial System: Selected Websites.

Categories: court-system, cool-website, State-Dept, World-Affairs-Council

Trial Theater

Trial Theater is the website of Elliott Wilcox, an experienced trial lawyer in Florida. The site advertises his consulting and training business, but it also offers some freebies.

You can sign up to get Trial Tips Newsletter each week via email. Check out the archive of "expanded" issues (every five or six weeks, the issue is longer than usual, adding interviews and book reviews). The tips seems practical and focused. I like the eclectic selection of books in the "Trial Lawyer's Library" section -- Wilcox ranges Stephen King's On Writing to Malcolm Gladwell's Blink: The Power of Thinking Without Thinking to Dr. Seuss's great Green Eggs and Ham. (And, yes, he draws good lessons for trial lawyers from Dr. Seuss!)

Other freebies worth a look are:

• "Tips for the Beginning Prosecutor" and
• an Evidence Log available in pdf or Word.

Categories: Trial-Theater, tips, cool-website,