McIver Case

Seattle City Councilmember Richard McIver faces trial for fourth degree domestic assault Dec. 10. This week a judge ruled that the press could obtain police documents, including the recording of a 911 conversation and witness statements. The judge denied release of a patrol car recording of Councilmember McIver.

Mr. McIver's attorney, Todd Maybrown, argued against the release of the documents because the release would violate the privacy of McIver and his wife and the pretrial publicity might make the trial unfair. He says that McIver is not guilty.

Recent stories (the information overlaps, but not entirely):

• Police documents detail events that led to arrest of Councilmember McIver, Seattle Times, Nov. 29, 2007.
• Judge rules to release Councilmember McIver police report, Seattle Times, Nov. 28, 2007.
• Police release documents in McIver domestic arrest, Seattle Times, Nov. 28, 2007.
• Judge orders release of police report in Seattle city councilman's arrest, Seattle Times, Nov. 27, 2007.
• McIver trial is in doubt: Councilman's wife won't testify, her lawyer says, Seattle P-I, Nov. 27, 2007.

  Seattle City Councilman Richard McIver could avoid a trial for allegations that he assaulted his wife if she remains unwilling to testify against him in court.
  
  Marlaina Kiner-McIver knows she could be put in jail for ignoring a subpoena, but, her lawyer said Tuesday, she has held the same position since her husband's arrest.
  
  * * *
  
  McIver's attorney, Todd Maybrown, said that without Kiner-McIver's testimony, prosecutors would have "no case at all," because there isn't any corroborating evidence that an assault occurred.
  
  "It shouldn't have been filed in the first place," Maybrown said. "It's not a provable case under any circumstances."

Todd Maybrown is also a UW Trial Ad instructor.

Judge tosses Hague's breath test in DUI case

Judge tosses Hague's breath test in DUI case, Seattle Times, Nov. 28, 2007.

The judge found that the warning the police give (as required by RCW 46.20.308) before administering a breathalyzer test to King County Councilwoman Jane Hague did not adequately warn her of the possible impact of a high reading.

[William] Kirk, Hague's attorney, argued Wednesday that application of the implied-consent law depends on drivers agreeing to the tests "knowingly and intelligently" and after "having been fully informed of the consequences."

As written, Kirk argued, the warning given to Hague was incomplete and failed to fully document the consequences of allowing the test to be administered.

"The blame doesn't lie with the State Patrol," said Kirk, but rather with the language the Legislature adopted in 2004.

A DUI suspect can still be prosecuted without breathalyzer evidence; it's just harder for the prosecution to make its case.

KCBA CLE on Trial Skills

The King County Bar Association is offering a CLE on Trial Skills Fri. Dec. 7. The faculty includes Charles Gordon, Gordon Tilden Thomas & Cordell LLP, Jeffrey Grant, Aoki Sakamoto Grant, LLP, Honorable Dean Lum, King County Superior Court, Dr. Theodore Prosise, Tsongas Litigation Consulting, Aaron Rocke, Carney Badley Spellman PS, Roy Umlauf, Forsberg & Umlauf PS, Lish Whitson PLLC, and Matthew Williams, Attorney at Law. Jeff Grant, Aaron Rocke, and Lish Whitson have taught in the UW Trial Ad Program; Jeff Grant also teaches Pre-trial Practice.

If you're a new attorney, note that KCBA discounts its CLE registrations for people admitted in 2005 or later.

If you're still a law student, even better: KCBA reserves limited spots in its CLEs for law students. All you need pay is $25 to cover the cost of materials. This is a great opportunity not only to learn important skills but also to meet and network with local attorneys. Contact Denise Medlock, DeniseM|at|KCBA.org.

Free Animal Law Symposium at Seattle U

Seattle University and SU's Student Animal Legal Defense Fund are hosting a free symposium on animal law.

Animal Law Symposium
November 28, 2007
4:30 pm – 6:00 pm
This event is FREE and open to the general public

Speakers will include:

Amanda Lee, JD

On December 7, 2005, one of the largest arrests of environmental activists in American history occurred. The FBI arrested six activists for allegedly taking part in a wide variety of violent crimes, including arson and domestic terrorism. One of the six arrested activists, Daniel McGowan, faced mandatory life in prison on charges related to two arsons in Oregon. As a result of Ms. Lee’s pre-trial motions and negotiations, the charges in the prosecution of McGowan were substantially reduced to a seven year sentence.

Ms. Lee will discuss her experiences representing defendants in “animal and eco-terrorism” cases -the types of people the defendants are, the unique challenges she faces as a lawyer with regards to strategy and picking jurors, the government's illegal wiretapping of defendants, philosophical issues, and more.

Adam Karp, JD MS

Across the nation, courts are evaluating the issue of compensatory damages awarded to those who lose their pets. Speaking on the topic of veterinary medical malpractice, Mr. Karp will explore legal recourse for pet owners, including a heightened standard of care afforded by veterinarians to their animal patients. Karp will address important questions, including:

”Can I recover for the pain and suffering of an animal?”
“What is the economic value of an animal?”
“What is the noneconomic value of an animal?”

Mr. Karp will also speak on the topic of dog-fighting. Karp is currently representing a case dealing with dog-fighting as it pertains to bankruptcy. Specifically, the case examines whether “willful and malicious injury to property/person” is a basis to avoid discharge in Chapter 7.

Elizabeth Lorraine ("Lorrie") Elliot, JD, LLM, MAT

Animal abuse takes many forms including forcing a victim of domestic violence to commit an act of violence upon their own beloved companion animal. Additionally, some victims of domestic violence remain in an abusive situation for fear of what will happen to their companion animals. Ms. Elliot will explore the connection that exists between domestic violence and animal abuse.


The Animal Law Symposium will take place at Seattle University, on the second floor gallery of Sullivan Hall. This event is FREE and open to the general public.
(Please see http://www.seattleu.edu/home/campus_community/visit_campus/ for directions to Seattle University and Sullivan Hall).

UW note: As it happens, all three speakers are graduates of the University of Washington School of Law. Adam Karp has taught Animal Law here and Amanda Lee has been a Trial Ad instructor.

Photo credit: Cheryl Nyberg

Moot Court News from All Over

Prof. Kent Streseman, who is the director of the appellate advocacy program at Chicago-Kent, has revived his blog, Mootness, that reports on moot court competitions from around the country.

One bit of news: the University of Washington team (Carrie Gage, Stephanie Knightlinger, Jeffrey Lane, Megan Larrondo, Ranjit Narayanan, Candice Tewell)
is among the 28 teams that are advancing to the finals of the National Moot Court Competition, sponsored by the Association of the Bar of the City of New York. (About 185 schools began the competition.) The UW team took it all last year. Here you can see a picture of the happy winners and, if you scroll to the bottom and click on a link, you can even see them in action in a video of the finals.

The UW also sent teams to the National Asian Pacific American Bar Association Thomas Tang Moot Court Competition,
the University of Puerto Rico Invitational Criminal Trial Advocacy Competition, and the Buffalo-Niagara Mock Trial Tournament.

And of course there have been a lot of busy students right here, too, since we had both a 2L/3L mock trial competition and (for the first time) a 1L mock trial competition. I got to be a judge for one round and was very impressed by the students.

(Corrected 11/28.)

Romney calls on judge to resign after 2 killed here | Seattle Times Newspaper

Romney calls on judge to resign after 2 killed here, Seattle Times, Nov. 25, 2007.

An offender is released from prison in Massachusetts after completing his sentence. (Prosecutors argued that he should be confined because of assaults on prison guards.) Later he (allegedly) kills a couple in Graham (Pierce County), Washington. Should we blame the judge? The governor who appointed the judge?

Scads of Empirical Studies

A couple of weeks ago, NYU hosted the Second Annual Conference on Empirical Legal Studies. Many scholars in this area are using social science research methods to explore different aspects of trials and litigation. Conference papers related to trial advocacy included:

• Kuo-Chang Huang, Does Discovery Promote Settlement? - An Empirical Answer (September 29, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=995349. Since Taiwan added discovery to its civil law system, settlements have increased.


• Seth Seabury, Inferring Beliefs from Selected Samples: Evidence from Civil Litigation (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998687. Litigants make settlement decisions based on jury verdicts in earlier cases -- but the sample of cases that actually go to trial is skewed, so this skews predictions.


• Gillian K. Hadfield, Settlement Values: How 9/11 Victims Saw the Choice between Money and Going to Court (June 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998647


• Nancy J. King, Habeas Litigation in the U.S. District Courts. 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999389.


• Jeffrey Fagan, Aaron Kupchik, and Akiva Liberman, Be Careful What You Wish for: Legal Sanctions and Public Safety Among Adolescent Offenders in Juvenile and Criminal Court (July 2007). Columbia Law School, Pub. Law Research Paper No. 03-61 Available at SSRN: http://ssrn.com/abstract=491202 or DOI: 10.2139/ssrn.491202.


• James E. Bessen & Michael J. Meurer, The Private Costs of Patent Litigation (March 2007). Boston University School of Law Working Paper No. 07-08 Available at SSRN: http://ssrn.com/abstract=983736.


• Randi Hjalmarsson, Crime and Expected Punishment: Changes in Perceptions at the Age of Criminal Majority (June 30, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1002390.


• Danton Asher Berube & Donald P. Green, The Effects of Sentencing on Recidivism: Results from a Natural Experiment (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999445.


• David S. Abrams, Marianne Bertrand, & Sendhil Mullainathan, Do Judges Vary in Their Treatment of Race? (July 5, 2007). Univ. of Chicago, Olin Law and Economics Program, Research Paper Series, Forthcoming Available at SSRN: http://ssrn.com/abstract=913021.


• Russell B. Korobkin & Joseph W. Doherty, Who Wins in Settlement Negotiations? (July 1, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998095.


• Claudia M. Landeo, Tort Reform and Disputes under Endogenous Beliefs (January 20, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=957753.


• Christina L. Boyd, Lee Epstein & Andrew D. Martin, Untangling the Causal Effects of Sex on Judging. 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1001748. Looking at federal courts of appeals, the researchers found that female judges were more likely to rule in favor of discrimination plaintiffs and male judges were more likely to do so if there was a woman on the panel.


• Samuel R. Gross & Barbara O'Brien, Frequency and Predictors of False Conviction: Why We Know So Little, and New Data on Capital Cases (September 2007). U of Michigan Public Law Working Paper No. 93 Available at SSRN: http://ssrn.com/abstract=996629.


• Joanna Shepherd & Paul H. Rubin, The Demographics of Tort Reform (November 2007). Emory Law and Economics Research Paper No. 07-17 Available at SSRN: http://ssrn.com/abstract=967712.

  Tort reform may not affect all segments of society equally. Studies have shown that many tort reforms disproportionately reduce compensation to women, children, the elderly, disadvantaged minorities, and less affluent people. This study goes beyond tort reform's disproportionate effect on compensation, to explore whether tort reform also has a disproportionate effect on accidental death rates. We explain that, theoretically, tort reform's care-level effects and activity-level effects may disproportionately impact the accident rates of different groups. Using the most accurate, comprehensive data on medical malpractice tort reforms and state-level data from 1980-2000, we examine empirically whether tort reforms indeed have such a disproportionate effect. The results from our empirical analysis are consistent with our theoretical predictions. We find that the impact of tort reform varies substantially among demographic groups. When we consider the net effect of all the reforms in our study together, our results suggest that women, children, and the elderly do not enjoy tort reform's benefits as much as men and middle-aged people. In fact, they might even be harmed by reform.

• Herbert M. Kritzer, To Lawyer, or Not to Lawyer, is That the Question? (August 2007). William Mitchell Legal Studies Research Paper No. 82 Available at SSRN: http://ssrn.com/abstract=1004773.

  A central aspect of much of the debate over access to justice is the cost of legal services. The presumption of most participants in the debate is that individuals of limited or modest means do not obtain legal assistance because they cannot afford the cost of that assistance. The question I consider in this paper is whether income is a major factor in the decision to obtain the assistance of a qualified legal professional. Drawing upon data from five different countries (the United States, England and Wales, Canada, Australia, and Japan) I examine the relationship between income and using a legal professional. The results are remarkably consistent across the five countries: income has relatively little relationship with the decision to use a legal professional to deal with a dispute or other legal need. The decision to use a lawyer appears to be much more a function of the nature of the dispute. Even those who could afford to retain a lawyer frequently make the decision to forego that assistance. The analysis suggests that those considering access to justice issues need to grapple with the more general issues of how those with legal needs, regardless of the resources they have available, evaluate the costs and benefits of hiring a lawyer.

• Catherine T. Harris, Ralph A. Peeples & Thomas B. Metzloff, Does Being a Repeat Player Make a Difference? The Impact of Attorney Experience and Case Picking on the Outcome of Medical Malpractice Lawsuits (July 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998105.


• Christina L. Boyd, She'll Settle It: Judges, Their Sex, and the Disposition of Personal Injury Cases in Federal District Courts (July 5, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998649.


• Paul Brace, Jeff L. Yates & Brent Boyea, Institutional Structure and Judge Ideology in Tort Litigation in State Supreme Courts (July 2, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=997907.


• David F. Greenberg & Valerie West, Sentencing Americans to Death After Furman (July, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=1000308.


• Elizabeth R. Tenney, Barbara A. Spellman & Robert MacCoun, Expanding the Scope of Cross Examination so that Jurors Can Infer Witness Calibration (September 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998593.


• Michelle M. Mello & David M. Studdert, Deconstructing Negligence: The Role of Individual and System Factors in Causing Medical Injuries . Georgetown Law Journal, Forthcoming Available at SSRN: http://ssrn.com/abstract=998574.


• David A. Hyman, Bernard S. Black, Charles M. Silver & William M. Sage, Estimating The Effect of Damage Caps in Medical Malpractice Cases: Evidence from Texas (October 2007). U of Texas Law, Law and Econ Research Paper No. 106 Available at SSRN: http://ssrn.com/abstract=995649.


• Ronen Avraham & Alvaro E. Bustos, The Unexpected Effect of Tort Reform: Do Caps Delay Settlements? (June 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=997112.


• Thomas H. Cohen, Do Federal and State Courts Differ in How They Handle Civil Trial Litigation: A Portrait of Civil Trials in State and Federal District Courts (June 28, 2006). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=912691.


• Stephen J. Choi, G. Mitu Gulati & Eric A. Posner, Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary (August 2007). U of Chicago Law & Economics, Olin Working Paper No. 357 Available at SSRN: http://ssrn.com/abstract=1008989


• Alyna Jehle, Monica K. Miller & Markus Kemmelmeier, The Influence of Accounts and Remorse on Mock Jurors' Judgments of Offenders (July 3, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998122.


• Rachlinski , Jeffrey J., Johnson, Sheri Lynn, Wistrich, Andrew J. and Guthrie, Chris, "Does Unconscious Bias Affect Trial Judges?" (July 9, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=999490.


• Mary R. Rose, Christopher G. Ellison & Shari Seidman Diamond, Preferences for Juries Over Judges Across Racial and Ethnic Groups (July 2, 2007). 2nd Annual Conference on Empirical Legal Studies Paper Available at SSRN: http://ssrn.com/abstract=998050. Asked whether they'd prefer a judge or jury to make decisions in four hypothetical situations, whites preferred judges by much higher margins than did blacks or Hispanics.
  

Photo from National Institutes of Health Medical Instrument Gallery.

The Business of District Courts

Judge D. Brock Hornby (D. Me.) wrote an interesting piece reflecting on what it is that federal district courts do: D. Brock Hornby, The Business of the U.S. District Courts, 10 Green Bag 2d 453, Westlaw (2007).

Beginning with the management approach of Peter Drucker, Judge Hornby asks what the courts' "customers" -- their outside constituents (lawyers, litigants, the public, Congress) -- value.

The obvious function, holding trials, is becoming a smaller and smaller part of a district judge's job. Civil filings are up, but civil trials are down. Criminal prosecutions remain high, but criminal trials are also down.

Dramatists enjoy trials. District judges enjoy trials. Some lawyers enjoy trials. Except as bystanders, ordinary people and businesses don't enjoy trials, because of the unacceptable risk and expense.

In the twenty-first century, the federal district courts' primary roles in civil cases have become law exposition, fact sorting, and case management -- office tasks -- not umpiring trials. In criminal cases, the judges' work remains courtroom-centered but, instead of trials, it has become law elaboration and fact finding at sentencing, supervising federal offenders after prison, and safeguarding the integrity of a criminal process that sends defendants to prison without trial. In 2007, that is the federal district courts' business. Trials as we have known them, and unfettered sentencing discretion, are not coming back.

Id. at 468.

Courtroom photo: U.S. District Court for the District of Maine.

Justice Report Slams King County Jail

Justice Report Slams King County Jail, KPLU, Nov. 21, 2007.

The Justice Department has delivered a stinging report over health conditions in the King County Jail. The report charges inmates rights are being violated, but county leaders disagree.

The KPLU story links to both the 27-page DOJ report and King County's response.

DOJ's Civil Rights Division began the investigation a year ago, under the Civil Rights of Insitutionalized Persons Act, 42 U.S.C. §© 1997-1997j.

Evaluators in Child-Custody Cases Scrutinized

I heard an interesting story on NPR this evening: Evaluators in Child-Custody Cases Scrutinized, All Things Considered, Nov. 21, 2007.

Psychologists and other mental health professionals are increasingly playing a role in child custody disputes.

Using a battery of psychological tests and expert judgment, psychologists make recommendations about which parent should have custody.

Those decisions are accepted by judges more than 90 percent of the time, but critics say the tests are flawed and the decisions are often more personal than professional.

See earlier post about local child custody evaluators.

Spokane man whose son died of methadone sues supplier's family

Spokane man whose son died of methadone sues supplier's family, Seattle Times, Nov. 21, 2007.

The plaintiff's 17-year-old son died after his friend, also 17, gave him methadone. The suit is against the friend's mother and alleges that she failed to secure a medicine cabinet, despite her daughter's past theft of medications from there.

Jury Duty Stamp

This fall, the US Postal Service released a stamp honoring jury service. USPS Stamp Release: Celebrity Jurors Help Postal Service Issue Jury Duty Stamp, press release, Sept. 12, 2007.

Supplies are limited -- only 40 million printed -- so get yours soon!

Evidence Of Injustice, FBI's Bullet Lead Analysis Used Flawed Science To Convict Hundreds Of Defendants - CBS News

Last night's "60 Minutes" opened with a story about the impact of a discredited forensic tool used by the FBI: Evidence Of Injustice, FBI's Bullet Lead Analysis Used Flawed Science To Convict Hundreds Of Defendants, 60 Minutes, Nov. 18, 2007.

For 40 years, the FBI tested bullet fragments and compared the lead content to other bullets, in the believe that bullets from the same batch would have distinctive chemical attributes (and those from separate batches would be different). But then in 1998, William Tobin retired from the crime lab. This formal chief metallurgist didn't drop metallurgy in retirement: instead he began a study of bullet lead analysis. Contrary to prior assumptions, he found that the lead chemistry could vary within a batch and match across batches.

In 2002, the FBI asked the National Academy of Sciences to do an independent study. Its National Research Council came back with a report that also questioned bullet lead analysis. A year later, the FBI told police departments and national associations of prosecutors and defense attorneys that it wouldn't run the tests anymore.

But what about the people who had been convicted based on this evidence over the prior decades? No one made any effort to contact them to say that there was a problem.

60 Minutes and the Washington Post teamed up with the Innocence Project and a team of summer associates from a Wall Street law firm to look for cases in which bullet lead testimony was a factor. They found 250 -- and believe that's just a fraction.

In one case, the defendant has always maintained his innocence. The public defender of his codefendant agrees. The codefendant told his lawyer 20 years ago that he had committed the murders alone, but the lawyer kept the confidence until after his client had died (a suicide in prison). When he went forward, a judge reported him to a disciplinary board. The defendant who asserts his innocence is still in prison.

On Friday, the FBI * * * acknowledged that it had made mistakes in handling bullet lead testimony and should have done more to alert defendants and the courts. As a result of the 60 Minutes-Washington Post investigation, the bureau said it will identify, review and release all of the pertinent cases, and notify prosecutors about cases in which faulty testimony was given.

The FBI also says it will begin monitoring the testimony of all lab experts to make sure it is based on sound scientific principles. FBI Assistant Director John Miller said, "We are going to the entire distance to see that justice is now served."

The Washington Post coverage ("Silent Injustice") is here.

Driver Who Killed Officer Sentenced

Officer's life honored as killer gets 20 years. Mary Jane Rivas had a long record of misdemeanor and felony convictions for various offenses when she plowed into Officer Joselito Barber's patrol car at 23rd and Yesler at 80 miles per hour.

Rivas, 32, had pleaded guilty to vehicular homicide and possession of cocaine, and also agreed that she should serve an exceptionally long prison term.

In imposing the sentence, Superior Court Judge Harry McCarthy added a five-year 'special enhancement' to Rivas' sentence based on her recent release from prison before the accident. Only 10 days earlier Rivas had been released from prison for possession of cocaine.

Rivas was one of three former prison inmates who, while under the state's version of probation, were involved in incidents that resulted in the deaths of three Seattle-area law enforcement officers in 2006. The incidents prompted Gov. Christine Gregoire to order the state Department of Corrections to review its conditional-release policies.

Judge Harry McCarthy is also a UW Trial Ad instructor.

Plaintiffs' Bar Symposium

In the spring of 2006, New York Law School's Center for Professional Values and Practice hosted a symposium on The Plaintiffs' Bar.

It's obviously much too late to go to the symposium, but some of the papers were published in the New York Law School Law Review (Volume 51, Issue 2 (2006-2007)) and are very interesting:

Anita Bernstein, Marc Galanter & Tanina Rostain, Introduction, 51 N.Y.L. Sch. L. Rev. 209 (2006-2007)

Mary Nell Trautner, How Social Hierarchies Within the Personal Injury Bar Affect Case Screening Decisions, 51 N.Y.L. Sch. L. Rev. 216 (2006-2007)

Sara Parikh, How the Spider Catches the Fly: Referral Networks in the Plaintiffs' Personal Injury Bar, 51 N.Y.L. Sch. L. Rev. 243 (2006-2007)

Stephen Daniels & Joanne Martin, Texas Plaintiffs' Practice in the Age of Tort Reform: Survival of the Fittest – It's Even More True Now,51 N.Y.L. Sch. L. Rev. 285 (2006-2007)

Robert S. Peck & John Vail, Blame it on the Bee Gees: The Attack on Trial Lawyers and Civil Justice. 51 N.Y.L. Sch. L. Rev. 323 (2006-2007)

Richard L. Abel, How the Plaintiffs' Bar Bars Plaintiffs, 51 N.Y.L. Sch. L. Rev. 345 (2006-2007)

I found Parikh's piece particularly interesting. Based on research she did for her doctoral dissertation, it looks at referral patterns in the Chicago plaintiffs' bar. She groups lawyers hierarchically, based on the size of their average cases. Sometimes a low-end lawyer will refer "up" to a lawyer whose practice is specialized or better able to handle a "big" case (e.g., a firm that often takes complex product liability cases instead of automobile accident cases). The referring lawyers often depend on their cut of the eventual contingent fee -- which can be substantial. But many high-end and elite lawyers cultivate referral partners who are from firms or practices that don't accept fee splitting. Higher-end lawyers refer "down" when they have cases that they don't want to take.

(Washington's rule on lawyers from different firms sharing fees is RPC 1.5(e). The Illinois rule is 1.5(f)-(h) of that state's RPC. Illinois is explicit about fees for referrals, while Washington says that the lawyers who split fees must be jointly responsible for the representation. It allows referral fees to a county or state bar referral service.)

Abel looks at many aspects of the plaintiff-attorney relationship. Plaintiffs and attorneys often have very different interests. He comments that a justification for contingency fees is the lawyer's risk that the case is lost and no money is collected -- but says that lawyers select cases carefully enough that they may not have as much risk as the argument suggests. His argument is bolstered by Parikh's work on referrals -- the referring lawyers often serve to screen out the cases that have little chance of success.

Abel also has a section on the financial services that lend plaintiffs (or plaintiffs' attorneys) money pending collection of a judgment (e.g., during an appeal). The services charge amazingly high rates, often requiring the borrower to repay twice the amount borrowed (or more!). One company boasts that it has failed to collect only 2% of its loans -- so, again, the risk of nonpayment is not the justification for the whopping interest rates.

Arbitrary Justice: The Power of the American Prosecutor

In Arbitrary Justice: The Power of the American Prosecutor, Professor Angela Davis (American University Washington College of Law) "examines the expanding power of prosecutors, from mandatory minimum sentencing laws that enhance prosecutorial control over the outcome of cases to the increasing politicization of the office. Drawing on her dozen years of experience as a public defender, Davis demonstrates how the everyday, legal exercise of prosecutorial discretion is responsible for tremendous inequities in criminal justice."

The book's website has lots of information, including chapter summaries (and a pdf of all of Chapter One) and reviews.

The book is available in the library: KF9640 .D38 2007 at Classified Stacks.

Prof. Davis organized a conference at AU last month: The American Prosecutor - Power, Discretion and Accountability. C-SPAN aired much of the conference, and you can watch clips here.

Blogging Jurors

Anne Reed (lawyer, trial consultant, and the author of the Deliberations blog) was interviewed last week on a Milwaukee radio program. The three-minute piece about jurors who blog is very interesting.

Reed says that a lot of trial attorneys are oblivious to how many of their potential jurors are online, and so they make mistakes and miss opportunities. For instance, judges routinely instruct jurors not to talk about the case or read the newspaper, but the jurors don't hear that as meaning they shouldn't blog about it or read the online sources they usually do; Reed recommends that the cautions be explicit. She also recommends that lawyers ask jurors if they have blogs, MySpace pages, Flickr pages, etc. -- and if so, how the lawyer could find them. You can learn a lot about people!

She also talked a little about a recent California appellate case that threw out a jury's verdict. A juror blogged that he had said his profession was "project manager" because that sounded better than "lawyer" and he wanted to be on the jury -- and then he boasted online that he had steered the jury too its verdict. Reed wrote about that case (People v. McNeely) here (June 19, 2007) and here (June 21, 2007).

Along the same themes as the radio interview, see Reed's posts: Jurors And Social Networking? So What?, Deliberations, Nov. 1, 2007; Jurors Who Read Blogs, Deliberations, June 27, 2007; Blogging Jurors, Part III: The Good, June 22, 2007.

FRCP - New! New! New!

This year brings changes to all of the Federal Rules of Civil Procedure. Some of the changes are stylistic, some organizational, and some substantive.

The new rules are here.

For a discussion of the changes, see Michael C. Dorf, Meet the New Federal Rules of Civil Procedure: Same as the Old Rules?, Findlaw, July 18, 2007. (Dorf teaches at Columbia.)

A little video by the authors (a law professor and a practitioner) of the Federal Civil Rules Handbook (KF8816 .A194 at Reference Area) is here. The 2007 edition came in December 2006; we're expecting the 2008 edition soon, and it promises to have analysis of all the changes.

As tears flow, driver sentenced in worker's death

As tears flow, driver sentenced in worker's death, Seattle Times, Nov. 10, 2007. The driver, who had a blood alcohol level of .20 percent, pleaded guilty to vehicular homicide in the death of a construction worker on I-405. The sentencing judge, Harry McCarthy, "described the sentence [41 months] as 'woefully inadequate,' but he noted it was the maximum allowed under state sentencing guidelines. Judge McCarthy is also a UW Trial Ad instructor.

Funding of Local Campaigns

Washington Public Campaigns hosts Clean Campaigns Forum, discussing the funding of local election campaigns. Sat., Nov. 17, 2007, 7:30 pm, Kane Hall. The UW School of Law is a cosponsor of the forum.