Deposition Transcripts

L.A. attorney Damian Capozzola discusses (and recommends) using LiveNote to produce real-time transcripts during depositions: Gain Advantage With Real-Time Transcripts, Legal Tech Newsletter, July 30, 2007. (Earlier post.)

Maleng RJC

King County, WA, Regional Justice Center named after prosecutor, Seattle P-I, July 31, 2007.

What to Take for Your Out-of-Town Trial

Here are tips on what equipment you need to set up a war room for an trial out of town: Cutting Trial War Rooms Down to Size, Law Technology News, July 17, 2007. Power strips, surge protectors, laptops, cell phone chargers -- but no lances or maces.

Photo: Tina Ching.

Trial Courts as Organizations

What makes trial courts tick? What is their organizational culture? This book takes a look: Brian J. Ostrom, Charles W. Ostrom, Roger A. Hanson and Matthew Kleiman, Trial Courts as Organizations (K181 .O44 2005 at Classified Stacks).

The authors are two researchers from the National Center for State Courts and two professors (one Poli Sci and one Poli Sci and Law).

Here's the publisher's synopsis:

Court administrators and judges have long acknowledged that culture plays an important role in the function of trial courts. Trial Courts as Organizations provides a comprehensive framework for understanding this organizational culture, along with a set of steps and tools to assess and measure the current and preferred culture.

The authors examine how courts operate, what characteristics they may display, and how they function as a unit to preserve judicial independence, strengthen organizational leadership, and influence court performance. They identify four different types of institutional cultures using a systematic analysis of alternative values on how work is done. Each culture is shown to have its own strengths and weaknesses in achieving values, such as timely case resolution, access to court services, and procedural justice. Accordingly, the authors find judges and administrators prefer a definite pattern of different cultures, called a "mosaic," to guide how their courts operate in the future.

Lee Epstein (Northwestern University School of Law) has very warm praise:

"A wonderful-and welcome-addition to the literature. To say that political scientists have failed to devote sustained attention state trial courts is to way understate the case. If scholarship was commensurate with caseloads, nine out of every ten studies would focus on these arenas, and not the U.S. Supreme Court or even the lower federal courts-as they currently do. Not only does Trial Courts as Organizations go some distance toward remedying this imbalance, it also does the really hard work of building a foundation for future scholarship. A very impressive achievement indeed."

Whatcom County wall squabble reaches beyond the border

Shirley Ann and Herbert Leu built a retaining wall in their backyard in Blaine, and now they're in federal court over it. David Browermaster, Whatcom County wall squabble reaches beyond the border, Seattle Times, July 26, 2007.

How does a backyard wall end up in federal court?

The International Boundary Commissionwanted them to take the wall down because it allegedly violates a 20-foot "boundary vista." Dennis Schornack, the U.S. member of the IBC informed them. They brought suit.

And then things got complicated. The State Department and the Justice Department told Schornack to hire outside counsel, then DOJ told him it would handle the case and he should discharge the outside counsel and settle. Schornack didn't want to settle, so President Bush fired him and tried to appoint a new commissioner. But can he do that? The old commissioner says no. speaking of replacing federal officials, one of the attorneys on Schornack's team is fired U.S. Attorney John McKay.

Judge Marsha Pechman heard arguments on Wednesday.

Photo: Tina Ching.

Judge says PC-system allegations not libel

On Wednesday Judge Zilly (W.D. Wash.) dismissed a libel case against an author (Sir Harold Evans, author of <They Made America: From the Steam Engine to the Search Engine: Two Centuries of Innovators) by a software developer (Tim Paterson), saying the allegedly libelous statements were not provably false and there was no evidence of actual malice. Judge says PC-system allegations not libel, Seattle Times, July 26, 2007.

How Should System Respond to Parents Who Leave Kids in Cars?

The AP analyzed 300-some child deaths in hot cars in the last 10 years. Sometimes caregivers are charged, sometimes not. When they are prosecuted sentences vary. Mother are more often charged than fathers and, when convicted, their sentences average two years longer. Sentences vary when kids die in hot cars, Seattle Times, July 28, 2007.

An increase in these car deaths has coincided with the new rules that kids' car seats should be put in the back because of airbags. With the child out of sight, it's easier for a distracted parent to forget the child is there.

Tulia Chronicles Injustice

Nate Blakeslee, Tulia: Race, Cocaine, and Corruption in a Small Texas Town, HV8079.N3 B55 2005 at Good Reads, looks like another fascinating book. Here's the publisher's description:

In the summer of 1999, in the tiny west Texas town of Tulia, thirty-nine people, almost all of them black, were arrested and charged with dealing powdered cocaine. The operation, a federally-funded investigation performed in cooperation with the local authorities, was based on the work of one notoriously unreliable undercover officer. At trial, the prosecution relied almost solely on the uncorroborated, and contradictory, testimony of that officer, Tom Coleman. Despite the flimsiness of the evidence against them, virtually all of the defendants were convicted and given sentences as high as ninety-nine years. Tom Coleman was named a Texas Lawman of the Year for his work.

Tulia is the story of this town, the bust, the trials, and the heroic legal battle that ultimately led to the reversal of the convictions in the summer of 2003. Laws have been changed in Texas as a result of the scandal, and the defendants have earned a measure of bittersweet redemption. But the story is much bigger than the tale of just one bust. As Tulia makes clear, these events are the latest chapter in a story with themes as old as the country itself. It is a gripping, marvelously well-told tale about injustice, race, poverty, hysteria, and desperation in rural America.

Speaking of Tulia, see Kevin R. Johnson, Taking the "Garbage" Out in Tulia: Racial Profiling and the Taboo on Black/White Romance in the "War on Drugs", Wisconsin Law Review, Forthcoming. Available at SSRN http://ssrn.com/abstract=931452.

Indefensible -- a PD's day

Indefensible: One Lawyer's Journey into the Inferno of American Justice (KF373.F37 A3 2006 at Classified Stacks) by David Feige shows a public defender's day in the South Bronx. Here's how the author's website describes the book:

If M*A*S*H took place in the Bronx instead of Korea and was about lawyers and judges, not doctors and officers, it would look a lot like INDEFENSIBLE, David Feige's darkly funny and thrilling account of an ordinary day in the complicated life of a public defender in the South Bronx. In the span of a single day we meet murderers and misdemeanants, loutish lawyers, and vindictive judges. We race from courtroom to courtroom, judge to judge, and defendant to defendant, in a shocking behind-the-scenes look at big city justice as it really happens.


This is a book full of black comedy and outrage, of unforgettable characters and situations. Written with the verve and insider know-how of a John Grisham thriller, but with the social conscience of a Barbara Ehrenreich, INDEFENSIBLE has real crossover potential—and should ignite a profound debate about law and order in America. It puts a human face on the terrifying systemic failures that make American criminal justice the dirty little secret of our time.

There's more than the author's own pitch: the book has been warmly reviewed in many newspapers and magazines.

Sounds great! I'm putting it on my list of books I want to read.

You can read Feige's commentary on law and politics on his blog, also called Indefensible.

Summer Reading

I've been catching up on the law library's new books lists -- somehow I just skip over them when I'm busy, which is most of the school year, so there are plenty to catch up on. I'm going to highlight some of the books related to trial practice in one way or another. Some are practical, some are journalistic, and some are scholarly.

I haven't read them myself (although I hope to get a chance to), but at least I can give you a little information about them.

What have I been reading? Most doesn't relate to law, but some does.

This week I'm in the middle of Joan Biskupic, Sandra Day O’Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice (KF8745.O25 B57 2005 at Classified Stacks) and I'm finding it very interesting. I had known that Justice O'Connor was on the Arizona Court of Appeals when Reagan nominated her to the Supreme Court; I hadn't known that she'd been a trial judge. Biskupic quotes (pp. 65-66) this remark she made in an interview with the Phoenix Gazette in 1974:

The whole experience of presiding over a trial in court is a remarkable experience. You see every kind of human emotion and human value expressed and you see people in very tense situations and you listen in detail to some remarkable problems and situations of every kind. . . . You have an inside look at crime and the kind of criminal behavior that we’ve all wrong our hands in an effort to stop. . . . There are moments of great pathos in a courtroom and there are moments of levity and there are moments of boredom.

Last month I read William Zinsser, On Writing Well: The Classic Guide to Writing Nonfiction (PE1429 .Z5 2001 at Reference Area). It's not about legal writing, but tips about clarity, directness, and storytelling are applicable to lawyers' work.

Spoliation of Evidence Can Spoil Litigation

Spoliation of Evidence Can Spoil Litigation, Daily Bus. Rev., July 2, 2007, discusses the cause of action for spoliation of evidence in Florida.

Interesting, I thought, but what about Washington?

I did a quick search in Washington Practice. (The books are at KFW80 in the Reference Area, but I'm in my living room, so I used the WAPRAC database in Westlaw.)

Spoliation of evidence is a relatively new tort which Washington has yet to recognize.

David K. DeWolf & Keller W. Allen, 16A Washington Practice: Tort Law & Practice sec. 21.1.

Later (sec. 21.31) DeWolf and Allen discuss spoliation more. Someone did argue for a cause of action but the court appeals found that the trial court properly refused to give the instruction. Henderson v. Tyrrell, 80 Wash. App. 592, 910 P.2d 522 (1996).

So there you go. But the fact that it hasn't been recognized here yet doesn't mean that it won't be -- it's good to be aware of potential developments. DeWolf and Allen say the cause of action is recognized (in some form) in CA, FL, KS, AK, NJ, IL, and OH. And they refer us to Steffen Nolte, The Spoliation Tort: An Approach to Underlying Principles, 26 St. Mary's L.J. 351 (1995), for more .

Of course, whether or not there is a tort, spoliation can lead to other problems.

For one thing, if there's spoliation (the willful and improper destruction of evidence), then the opposing party can argue that the evidence would have been damaging to the person who destroyed it. The court may also prevent the party that destroyed evidence from presenting other evidence. Karl B. Tegland, Washington Practice: Evidence sec. 402 (3).

Spoliation can also earn you discovery sanctions. Karl B. Tegland, Washington Practice: Civil Procedure sec. 21.33. Tegland writes:

In Henderson v. Tyrrell, the court was relatively forgiving, but the holding should not lull parties or attorneys into a sense of complacency. The holding simply reaffirms the trial court's broad discretion and does not require trial courts to treat similar cases in a similar manner in the future. To minimize risk, cautious attorneys should continue to advise against the destruction of evidence without first obtaining a court order authorizing such destruction.

Loss of Russell blood vials a shock

Fred Russell is accused of vehicular homicide, based on an accident in 2004. Shortly before he was scheduled to go to trial, he fled the country. The Whitman County prosecutor asked the state crime lab to retain the blood sample. More than once. But the crime lab lost them. Now defense attorney Francisco Duarte (also a Trial Ad instructor) is asking for the suppression of the results of the test, since the sample cannot be retested. Duarte also suggests that dismissing the case would be an appropriate remedy if Russell has been deprived of his right to a fair trial. Loss of Russell blood vials a shock, Spokesman Review, July 23, 2007.

The article explores the possible impact of the missing evidence. And the website has a link to copies of correspondence between the Whitman County Prosecutor's office and the crime lab.

Alleged fighting dogs can't be euthanized

The Spokane County Regional Animal Protective Services (SCRAP) shelter is full and has to euthanize some dogs that potentially could be adopted. Instead, managers would prefer to euthanize 8 dogs that were seized from an alleged dog fighting operation in April. Spokane County Superior Court Judge Ellen Clark ruled today that the shelter must keep the (alleged) fighting dogs alive so that they can be available to the defense, e.g., for behavioral tests. Alleged fighting dogs can't be euthanized, Spokesman Review, July 27, 2007 [that's the date on the web page, but can it be right? isn't today the 26th?]

AG's Hiring of Legal Counsel Opposed

Oklahoma's attorney general, W. A. Drew Edmonson, hired outside counsel with a contingency fee agreement in 2005 to handle a big environmental case against about a dozen poultry processing plants. The U.S. Chamber of Commerce and the American Tort Reform Association have filed an amicus brief, arguing that the government's use of the outside counsel violates the federal and Oklahoma constitutions. AG's Hiring of Legal Counsel Opposed, Nat'l L.J., June 26, 2007.

Trials of Darryl Hunt

This week is your chance to see The Trials of Darryl Hunt, a documentary about a man who was wrongfully convicted and spent twenty years in prison. It's showing July 27 - August 2, Fri - Thurs at 7 & 9:15 PM (plus Sat & Sun at 3 & 5 PM) at the Northwest Film Forum, 1515 12th Ave. at Pike on Capitol Hill, Seattle.

This run is sponsored by the Langston Hughes African American Film Festival, ACLU of Washington, Amnesty International Puget Sound, and The Innocence Project Northwest.

Darryl Hunt's attorney, Mark Rabil, will be there Friday and Saturday. Friday will also have Q&A with Washington state criminal defense attorney Robert Flennaugh II.
Q&A with Washington state trial lawyer Jeff Grant. (Jeff Grant teaches Trial Ad and Pre-Trial Advocacy at the UW.) Panel discussion hosted by Langston Hughes African American Film Festival after 7:00 show on August 2.

I got to see the movie in March 2006, when the Innocence Project Network conference was here at the University of Washington and I thought it was great. (See earlier post.) Go see it if you can.

Watching the U.S. Supreme Court

In yesterday's P-I, Professor Stewart M. Jay looks at Justice Anthony Kennedy as a key player in the Roberts Court. Direction of the Constitution comes down to one justice, Seattle P-I, July 20, 2007 (July 20 on the website, July 21 on the doorstep). (Too bad the web version lacks the neat graphic showing the alignment of the Justices on high-profile cases.)

The opinion page also had Greg Stohr (from Bloomberg News), Business has a very good friend in Justice Alito, Seattle P-I, July 20, 2007.

Perkins Punditry PR

What do you do to distinguish your firm in a crowded legal market like Chicago's? Well, when you're in one of the few firms not involved in civil or criminal litigation relating to Conrad Black, you can make yourself available as a legal commentator, which is what Hugh Totten, a litigator in Perkins Coie's Chicago office did. Black trial a boon for Perkins Coie, Seattle Times, July 22, 2007.

The Confrontation Blog

The Confrontation Blog "is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation and academic commentary." The author is Richard D. Friedman, a professor at the University of Michigan School of Law.

A speaker I heard the other day (I'm at the annual meeting of the American Association of Law Libraries) gave this as an example of a blog focused on a fairly narrow topic. If this is a topic you care about, it could be very valuable. And since it's so focused, it seems to have only a handful of posts per month, so you won't be overwhelmed by a flood of information.

Class Action Waiver Unconscionable, Case Against Cingular Goes Forward

Consumers filed a class action Cingular, alleging overcharges. Pursuant to an arbitration clause, the trial court ordered arbitration. But the arbitration clause included a waiver of class action litigation or class action arbitration, and the plaintiffs argued that that waiver was unconscionable -- and the Washington Supreme Court agreed. The arbitration clause says that if any part is invalidated the whole clause is out, so the case doesn't have to go to arbitration at all. Scott v. Cingular Wireless, No. 77406-4, majority (July 12, 2007) (Chambers, J.).

In dissent, Justice Madsen (joined by Justices J. Johnson and Bridge) says: "If there is to be state policy forbidding class action waivers in consumer agreements, it should come from our legislature, not this court." She is also concerned about the case's disfavoring of arbitration.

This case had a lot of lawyers working on it. For the plaintiffs (petitioners), there were three lawyers from Crane Dunham and two from Trial Lawyers for Public Justice (TLPJ's briefs are here). For the respondents, there were seven -- one from Cingular, one from Microsoft, and five from at least two different law firms.

And then there were the amici:

• Washington State Trial Lawyers Association Foundation (brief here)
• Attorney General of Washington (brief here)
• Association of Washington Business
• Chamber of Commerce (both local counsel and two from the Nat'l Chamber Litigation Center in DC) (brief here)
• The Wireless Association Ctia
• 
  
• AARP (again, both local and from DC) (brief here)
• National Association of Consumer Advocates (one of the two listed counsel is with the AARP Foundation)
• Intel Corporation
• Amazon.com , Inc.
• Realnetworks , Inc.
• Microsoft Corporation

Here's commentary on the case from a Seattle Times reporter: State Supreme Court backs class-action suits, Postman on Poltics, July 12, 2007.

Here's a summary of a similar case in Illinois (Kinkel v. Cingular Wireless LLC): Illinois Supreme Court Holds Class Action Waiver Unconscionable, Consumer Law & Policy Blog, Oct. 17, 2006.

Excited Utterance Case

The Washington Supreme Court upheld the admission of a hearsay statement by an 11-year-old girl in an attempted molestation case as an excited utterance in State v. Young, No. 76533-2, Washington Courts website (July 12, 2007).

Justice Fairhurst summarized:

In a pretrial hearing, the trial court determined that hearsay statements were admissible as excited utterances even though the declarant later recanted the statements, the circumstances surrounding the statements provided the only corroboration that a startling event occurred, and minor discrepancies existed in the witnesses' testimony about the content of the statements. We hold that the trial court did not abuse its discretion by admitting the hearsay statements as excited utterances and affirm the Court of Appeals.

What caught my eye in the list of new opinions was that there were several: majority (Fairhurst, J., joined by C. Johnson, Bridge, Chambers, and Owens), concurrence (Alexander, C.J.), concurrence (Madsen, J.), and dissent (Sanders, J., joined by J. Johnson, J.). A split like that, with so many justices taking the time to write separately, is a sign that the case is not straightforward. And hence it's worth a close look for those trying to stay on top of the Evidence Rules and think about how to apply (or distinguish) precedent.