Spokane Diocese Close to Settlement

The Spokane Roman Catholic Diocese has agreed to pay $48 million to settle claims of sexual abuse by clergy, according to a press release from the Nevada bankruptcy judge who is serving as a mediator. The settlement still needs to be approved by the bankruptcy judge who is presiding over the case and then voted on by the creditors. Spokane Diocese agrees to pay at least $48 million to settle clergy abuse, Seattle Times, Jan. 4, 2007.

The press release is here (on the Spokesman Review's website). And the Spokesman Review's ongoing coverage is here.

Ressam's Letter to Judge Coughenour

In November, Ahmed Ressam (who was convicted of involvement in a plan to bomb LAX) sent a letter to district judge John Coughenour. Now the letter (in Arabic) and a translation have been made public. Millennium bomber changes story about friend. Mr. Ressam's attorney is Tom Hillier, of the Federal Public Defender's office (and the Trial Ad faculty). (Judge Coughenour is teaching Advanced Trial Advocacy this quarter too.)

Renewed call for tougher gun laws

Seattle Mayor Greg Nickels -- joined at a news conference by police chief Gil Kerlikowske and Special Agent Kelvin Crenshaw (the head of the local ATF office) -- is urging the legislature to enact tougher gun control laws this session. Renewed call for tougher gun laws, Seattle PI, Jan. 4, 2007.

Protesting Soldier's Pretrial Hearing

1st Lt. Ehren Watada refused to deploy to Iraq with his Stryker brigade from Fort Lewis. Now he faces a court-martial. Today his lawyer argued in a pretrial hearing that the Army should not be allowed to prosecute him for conduct unbecoming an officer because of remarks he made explaining his decision to journalists and a group at a veterans convention; the prosecution for "missing movement" should be enough. Even though he's in the Army, the lawyer argued, he still has a constitutional right to speak out. Lt. Watada is also requesting an evidentiary hearing on the legality of the war itself. Judge hears motions during officer's pretrial hearing, Seattle P-I, Jan. 4, 2007.

See also Anti-war camp gears up for Watada's trial, Seattle P-I, Jan. 4, 2007.

Plea in Tacoma School Shooting

Today in Pierce County Superior Court Douglas Chanthabouly, 18, was charged with shooting fellow student Samnang Kok at in a hallway of Foss High School (Tacoma) Wednesday morning. Teen charged in Tacoma, Wash., school shooting pleads not guilty, Seattle PI (AP), Jan. 4, 2007.

“I can’t tell you why,” he told investigators, according to court documents. “I don’t want it in the news.”

Court documents give details of Foss High shooting, News Tribune, Jan. 4, 2007.

For full coverage, see the New Tribune, which has a special page about the incident.

The Seattle Times has the Information and the Affidavit of Probable Cause online.

Putting the Cat Back in the Bag

During discovery, when parties might hand over the equivalent of millions of pages, it's quite possible for a privileged document to be included unintentionally. If they send -- or receive privileged documents -- what should counsel do? Law Practice Today has an article -- Carl G. Roberts, The Attorney-Client Privilege and the Amended Federal Discovery Rules, Dec. 2006 -- that discusses the issue.

Fed. R. Civ. P. 26(b)(5)(B) provides:

If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The producing party must preserve the information until the claim is resolved.

That is, if you mistakenly turn over privileged material, notify the other party. (Oops!) And if you're on the team that got it, you have to do your best to get it back, destroy it, or whatever. If you aren't sure of the disclosing side's claim, you can ask the court to look it over.

The article discusses different types of privilege (attorney-client privilege is distinct from attorney work-product privilege, for instance).

The article discusses proposed Rule 502 of the Federal Rules of Evidence, which was published for comment in August 2006. Materials are linked from here. Comments are due Feb. 15, 2007. The text of the proposed rule (in case you're dying to read it):

Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver
(a) Scope of waiver. — In federal proceedings, the waiver by disclosure of an attorney-client privilege or work product protection extends to an undisclosed communication or information concerning the same subject matter only if that undisclosed communication or information ought in fairness to be considered with the disclosed communication or information.

(b) Inadvertent disclosure. — A disclosure of a communication or information covered by the attorney-client privilege or work product protection does not operate as a waiver in a state or federal proceeding if the disclosure is inadvertent and is made in connection with federal litigation or federal administrative proceedings — and if the holder of the privilege or work product protection took reasonable precautions to prevent disclosure and took reasonably prompt measures, once the holder knew or should have known of the disclosure, to rectify the error, including (if applicable) following the procedures in Fed. R. Civ. P. 26(b)(5)(B).

[( c ) Selective waiver. — In a federal or state proceeding, a disclosure of a communication or information covered by the attorney-client privilege or work product 22 protection — when made to a federal public office or agency in the exercise of its regulatory, investigative, or enforcement authority — does not operate as a waiver of the privilege or protection in favor of non-governmental persons or entities. The effect of disclosure to a state or local government agency, with respect to non-governmental persons or entities, is governed by applicable state law. Nothing in this rule limits or expands the authority of a government agency to disclose communications 30 or information to other government agencies or as otherwise authorized or required by law.]

(d) Controlling effect of court orders. — A federal court order that the attorney-client privilege or work product protection is not waived as a result of disclosure in connection with the litigation pending before the court governs all persons or entities in all state or federal proceedings, whether or not they were parties to the matter before the court, if the order incorporates the agreement of the parties before the court.

(e) Controlling effect of party agreements. — An agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection is binding on the parties to the agreement, but not on other parties unless the agreement is incorporated into a court order.

(f) Included privilege and protection. — As used in this rule:
(1) “attorney-client privilege” means the protection provided for confidential attorney-client communications, under applicable law; and
(2) “work product protection” means the protection for materials prepared in anticipation of litigation or for trial, under applicable law.

(c) is in brackets because the committee is seeking comments but hasn't taken a position yet.

Kids are Different

A public defender in Washington writes about a very human interaction with a 14-year-old client that reminded her of why she loves working with juveniles. Check it out: Kids are Different, Injustice Anywhere . . ., Dec. 29, 2006.

Witness Interview is Picture of the Year

One of the Seattle Times's Pictures of the Year for 2006 is a photo of a witness being interviewed by a detective and a King County deputy prosecutor (and Trial Ad instructor) Scott O'Toole at the scene of a murder/arson. (Conner Schierman has been charged and has pleaded not guilty to the crimes.)

Other Washington Trial Practice Blogs

Evan Schaeffer at the Illinois Trial Practice Weblog listed Other Trial-Practice Weblogs for You to Consider, Jan. 2, 2007. One I hadn't come across before is just over the mountains: Washington Trial Law, by Robert Boggs, of Lyon, Weigand, & Gustafson, P.S., in Yakima.

Another blog I've mentioned here before is Electronic Discovery Law by K & L Gates (until last week the firm was Preston Gates & Ellis).

Other Washington State blogs on topics even tangentially related to trial practice:

• Arbitrary and Capricious (an interesting source of commentary about the legal system, criminal law, and public defense).
• Employment Advisory, by Rod Stephens.
• Environmental Law in Washington State, by Paul Hirsch.
• Maritime Injury Law Blog, by Beard Stacey Trueb & Jacobsen, LLP.
• Marler Clark's blogs related to food safety litigation.
• Privacy and Security Law Blog, by Davis, Wright, Tremaine LLP.
• Real Estate - Construction - Lien Law Blog, by Levy, Von Beck & Associates, P.S.
• Seattle Landlord-Tenant Attorney, by Scott Eller.
• WA State DUI Blog, by Cowan Smith Kirk Gaston Law Firm
• Washington State DUI Blog, by StOrmshadow and Logan Wayne.
• Washington Construction Law, by Davis Wright Tremaine LLP.
• Washington Personal Injury News (part of InjuryBoard.com, sponsored by a number of personal injury lawyers and firms).
• Office of the Attorney General News Releases (it's not really a blog, but you can get an RSS feed).

These blogs vary a lot in how much content they offer, how often they are updated, and the extent to which they appear to be online extensions of billboards or late-night TV ads.

Let me know if you know of other blogs covering trial-related topics in Washington State. And stick with Trial Ad Notes for a hearty and stimulating mix of state and national news and legal developments about trial practice and the legal system.

Roberts Wants Raises for Federal Judges

Chief Justice Roberts's year-end report on the federal courts to the issue of judicial salaries, which he says has "reached the level of a constitutional crisis." Chief justice calls for higher pay for judges, Seattle Times (reprinting Wash. Post story), Jan. 1, 2007.

Federal judges make from $165,200 (district court) to $212,100 (Chief Justice). That's a lot compared to any number of workers, but federal judges have slipped compared with, say law school deans -- and even first year associates at big firms. (Supreme Court clerks often get signing bonuses as big as their justices' salaries.)

The Chief Justice's report is here.

See SCOTUSBlog's post about the report -- and a comment from someone who says that terming the pay issue a "consitutional crisis" only demeans the problem and takes issues with many of Chief Justice Roberts's contentions. (The commenter is Dennis Bedard, whom Findlaw identifies as a Miami lawyer.)

Sealed Group Health Settlements

A couple of weeks ago, the Seattle Times ran a story about two medical malpractice cases against Group Health Cooperative and one OB/GYN there. The cases were settled and sealed with confidentiality agreements. What the state didn't know about doctor, malpractice suit, Seattle Times, Dec. 13, 2006. The Times emphasized the public interest in knowing about negligent health care providers. Even regulators -- the Department of Health -- didn't know about one multi-million dollar settlement when it disciplined the OB/GYN.

I missed this story (I happened to be out of town that week) until today when I went to Group Health's website (it's my own HMO) and saw Group Health's Response to the Seattle Times Article, Dec. 13, 2006. Group Health says that it did not request to have the cases sealed. In the Times story, the plaintiffs' attorney said she did wanted to share her files. Who does that leave? The doctor?

Harder to Seal Records

Continuing its Your Courts, Their Secrets series, the Seattle Times reports that the series has made a difference. No cases have been sealed in King County Superior Court since the series began in March; hundreds of cases formerly sealed have been opened up. "It's a new day" as secrecy fades, Seattle Times, Dec. 31, 2006.

Although the Times was investigating state cases, the local federal court (W.D. Wash.) also tightened its rules, saying lawyers can no longer file pleadings under seal without the permission of a judge.

The article recounts the legal efforts to get cases unsealed, from trying to serve parties who are only vaguely identified to countering motions from those who wanted to keep cases under wraps. Three Davis Wright Tremaine lawyers (Marshall Nelson, Eric Stahl, and Lissa Shook) represented the Times in most of the cases.

An accompanying story discusses the UW's $3.2 million settlement of a medical-malpractice case brought against the UW Medical Center and the manufacturer of an insulin pump. UW finally tells what it paid to settle suit, Seattle Times, Dec. 31, 2006.

Hats off to the reporters who have done such impressive work on this series: Ken Armstrong, Justin Mayo and Steve Miletich.

Juror Locked in Bathroom: Tainted Verdict?

The New York Appellate Division upheld a conviction over a claim that the trial judge should have investigated whether a juror who locked herself in the bathroom for 75 minutes was emotionally fit to serve on the jury. Conviction Upheld Despite 'Emotionally Upset' Juror, N.Y.L.J. (law.com), Dec. 8, 2006.

NY Judge Says Drowsy Lawyer Provided Good Assistance

Lawyer Provided Excellent Defense Despite Sleeping During Trial, ays Federal Judge, N.Y.L.J. (law.com), Dec. 15, 2006.

Denying a new trial, the judge noted that the lawyers didn't doze much -- and it was mostly during some tedious, routine testimony about gambling machines and agent surveillance of an organization. The judge kept the courtroom cold (telling the jurors to bring sweaters) and made sure the lawyer was supplied with ice water. In the end, his client was found not guilty on more counts than any of his codefendants.

"Civil Justice Attorneys"

The Fulton County (Ga.) Daily Report has a small piece about a lawyer changing firms in Atlanta. What's out of the ordinary is that the firm's new business cards will identify the lawyers as "civil justice attorneys" instead of "trial lawyers," following ATLA's name change to the American Association for Justice. "Civil justice attorney better defines what we dol. Our goal is not to get to trial. It is to obtain full, fair and just compensation for injured people and their families." A Trial Lawyer by Any Other Name ..., Fulton County Daily Report (law.com), Dec. 29, 2006.

Although the American Trial Lawyers Association voted on the name change last summer (see earlier posts here, here, and here, it only made the change official this month (letter, Dec. 5).

N.J. Judge OKs $14.5M Settlement in Class Action Over Bad Jeep Brakes

N.J. Judge OKs $14.5M Settlement in Class Action Over Bad Jeep rakes, N.J.L.J. (law.com), Dec. 29, 2006.

A New Jersey judge has approved a $14.5 million settlement in a national class action alleging defective brakes on Jeep Grand Cherokees.

Superior Court Judge Jonathan Harris, in a ruling released on Tuesday, certified, for settlement purposes, a class consisting of those who bought or leased 1.2 million 1999 to 2004 Jeep Grand Cherokees.

Locked Up for Christmas

New York attorney Anthony Colleluori vents about the NYS Dept of Criminal Justice Services. His client was arrested on Dec. 23 for assault in the second degree. The case is weak and the client has a job and family -- but the judge COULD NOT set bail because there wasn't a rap sheet yet because the Dept of Criminal Justice Services had not processed the client's fingerprints. That Lawyer Dude: NYS Department of Criminal Justice Services Christmas Message To The Families Of Accused Felons: BAH HUMBUG, Dec. 24, 2006.

Gee, when I watch "Law and Order," it seems they "pull the sheet" almost immediately. Who knew that TV wasn't the same as real life?

Intimate partner violence declining in US: DOJ report

Intimate partner violence declining in US: DOJ report, Jurist - Paper Chase, Dec. 29, 2006.

Nonfatal domestic violence is down. And homicide by intimate partners is down -- especially for male victims. The Bureau of Justice Statistics publication is here. A press release (Dec. 28) summarizes the findings.

8th Cir. Rejects Sentence for Mom Who Aided Pedophile

The 8th Circuit rejects of district court's downward variance from the sentencing guidelines in a case with disturbing facts. Court Throws Out Light Sentence for Mom, Washington Post, Dec. 19, 2006.

A woman pleaded guilty to aggravated sexual abuse and conspiracy to commit sexual abuse: she had "rented" her 9-year-old daughter to a pedophile, for $20 a session, often holding the girl down while the man molested her. The district court sentenced her to 17 1/2 years in prison, the minimum under the federal sentencing guidelines. The 8th Circuit remanded for reconsideration in light of United States v. Booker, 543 U.S. 220 (2005). The district judge then sentenced her to 10 years, giving her leniency because of her history of mental health problems and substance abuse. The 8th Circuit found that the sentence was unreasonable because it did not properly take into account the seriousness of the offense. the "sentence quite simply is not proportional to the circumstances of the crimes and the persons involved." United States v. Kane, 06-1103 (8th Cir. Dec. 18, 2006).

See comments at Sentencing Law and Policy.

Cohen Reviews the Year

Washington Post columnist Andrew Cohen reviews the year's legal news, decrying abuses of civil liberties -- and widespread indifference to the abuses. The Legal Year in Review, Washington Post, Dec. 29, 2006.