Keep a Record of Talks with Opposing Counsel

Here are some tips on how to confirm an understanding and clear up questions after you have a conversation with opposing counsel: Conversations with Other Lawyers, Day on Torts, Nov. 7, 2007.

What to Do When Jury Asks to Hear Testimony Again

When a jury asks to have testimony read back -- or played back from a recording -- what should the judge do? The Ninth Circuit recently vacated a conviction because the trial judge "abused its discretion by permitting the jury to rehear only a portion of a key witness's testimony without taking necessary precautions to ensure the jury did not unduly emphasize the testimony." United States v. Richard, No. 06-10377 (9th Cir. Oct. 12, 2007). Anne Reed has a good summary: Ninth Circuit To Trial Judge: It's Not Too Late To Look Like An Idiot, Deliberations, Oct. 16, 2007.

The Silent Stereotype - Anti-Semitism in the Courtroom

Deliberations looks at anti-semitism -- citing a study by the Anti-Defamation League and reflecting on what it means for trials. The Silent Stereotype, Deliberations, Oct. 18, 2007.

Expect Less From Your Jury Consultant

Tips on what to expect -- and not expect -- from a jury consultant, by Anne Reed, a jury consultant and attorney: Expect Less From Your Jury Consultant, Deliberations, Nov. 13, 2007.

The Grim Power Of Grim Evidence

Follow the link for a summary of a couple of studies that found that "Jurors presented with gruesome evidence, such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence." "The Grim Power Of Grim Evidence, Deliberations, Nov. 26, 2007.

Judge Posner And The Jury Trial

Deliberations reviews a couple of opinions by Richard Posner on trial judges' management of trials. Judge Posner And The Jury Trial, Deliberations, Dec. 5, 2007.

New Case, Old Law: The Seventh Amendment In The Ninth Circuit

Anne Reed, a Wisconsin lawyer and trial consultant, has a long post discussion a recent Ninth Circuit case on the seventh amendment right to a jury trial: New Case, Old Law: The Seventh Amendment In The Ninth Circuit, Deliberations, Dec. 10, 2007.

The case is Hale v. U.S. Trustee, No. 06-35349 (9th Cir. Dec. 10, 2007).

American Juries: The Verdict

A new book on juries covers decades of empirical research. Neil Vidmar & Valerie P. Hans, American Juries: The Verdict (KF8972 .V53 2007 at Classified Stacks). The publisher's description:

This monumental and comprehensive volume reviews over fifty years of empirical research on civil and criminal juries and returns a verdict that strongly supports the jury system. Rather than relying on anecdotes, Vidmar and Hans—renowned scholars of the jury system—place the jury system in its historical and contemporary context, giving the stories behind important trials while providing fact-based answers to critical questions. How do juries make decisions and how do their verdicts compare to those of trial judges and technical experts? What roles do jury consultants play in influencing trial outcomes? Can juries understand complex expert testimony? Under which circumstances do capital juries decide to sentence a defendant to die? Are juries biased against doctors and big business? Should juries be allowed to give punitive damages? How do juries respond to the insanity defense? Do jurors ignore the law?

Finally, the authors consider various suggestions for improving the way that juries are asked to carry out their duties. After briefly comparing the American jury to its counterparts in other nations, they conclude that our jury system, despite occasional problems, is, on balance, fair and democratic, and should remain an indispensable component of the judicial process for the foreseeable future.

Cy Pres for Class Action Leftovers

Stephen Gardner, the director of litigation for the Center for Science in the Public Interest, has a long thoughtful post about the use of cy pres in class actions. What is cy pres? When some part of the award can't be distributed to all the class members (e.g., because some of them can't be located), courts often use their equitable powers and distribute the funds to charities. Cy pres: Boon or Benefit?, Consumer Law & Policy Blog, Nov. 28, 2007.

His post is in response to Adam Liptak, Doling Out Other People’s Money, N.Y. Times, Nov. 26, 2007, which quotes several critics of cy pres.

Public Citizen Report on New York's Med Mal Insurance "Crisis"

Public Citizen | Publications - A Self-Inflicted "Crisis": New York's Medical Malpractice Insurance Troubles Caused by Flawed State Rating Setting and Raid on Rainy Day Fund:

Shortsighted policy decisions by New York’s government in the 1990s are responsible for the purported medical malpractice “crisis” in the state, according to this report released by Public Citizen, New York Public Interest Research Group and the Center for Medical Consumers. Gov. Eliot Spitzer and a task force studying malpractice are urged to focus on ways to improve patient safety and to resist pleas from the insurance industry and the state’s doctors to pare back patients’ legal rights.

See Barry Boughton, A Self-Inflicted "Crisis", Consumer Law & Policy Blog, Nov. 29, 2007.

Binding Mandatory Arbitration in Employment and Consumer Cases

The Senate is considering a bill, the Arbitration Fairness Act of 2007 (S. 1782), which would eliminate pre-dispute arbitration in employment and consumer contracts. (An identical bill in the House is H.R. 3010.) Here's a post by Richard Alderman, a professor who supports the bill (the headline is sarcastic): BMA Proponents: Consumers Don't Know What's Good For Them; the Businesses That Write the Contracts Do, Consumer Law & Policy Blog, Dec. 17, 2007.

Foreclosures over the Holidays

Public Citizen and Civil Justice, Inc. (Baltimore) are challenging the constitutionality of the mortgage foreclosure notice procedures in Maryland. Foreclosures over the Holidays, Consumer Law & Policy Blog, Dec. 21, 2007.

Halliburton Mandatory Arbitration in Employment Disputes

Halliburton, the giant defense contractor, holds employees to a policy of resolving all employment disputes in arbitration rather than in court. A couple of effects: no public access to the records, a higher win rate for the employer, and lower awards in the cases the employees do win. This policy began when Vice President Dick Cheney was the company's CEO. Stephanie Mencimer, Cheney Justice?, Mother Jones, Dec. 21, 2007.

One case prominently featured in the article is that of Jamie Leigh Jones, a 20-year old employer of KBR (at the time a subsidiary of Haliburton) who alleges she was gang-raped by her co-workers in Iraq.

Thanks: Consumer Law & Policy Blog.

Stephanie Mencimer is the author of (KF8700 .M46 2006 at Classified Stacks) (earlier post).

Cut Along Dotted Line

Photo of Civil War surgeon's kit from National Park Service.

One type of medical error (not necessarily common, but who wants it even once?) is operating on the wrong site (left leg instead of right, pinkie instead of ring finger, appendix instead of ovaries). In response, the health care industry has adopted a Universal Protocol for Preventing Wrong Site, Wrong Procedure, Wrong Person Surgery.

For more on this issue see James W. Saxton & Maggie M. Finkelstein, Can Adhesive Labels Prevent Wrong Site Surgery and Reduce Liability Risk?, 12 Widener L. Rev. 293 (2005). Mr. Saxton and Ms. Finkelstein are litigators (based in Lancaster, PA) who represent doctors, hospitals, and long-term care facilities.

See also Cases of 'Wrong-Site Surgery' Are Rare, Medicine Online, April 20, 2006 (reporting study by Dr. Mary R. Kwaan of 20 years of malpractice insurance records). Hear also Wrong Site Surgery Is Rare, Healthcare 411, April (audio interview with Dr. Kwaan; transcript is here).

Justice Department's man in Baghdad

Justice Department's man in Baghdad, Seattle P-I, Dec. 18, 2007:

An assistant U.S. attorney whose day job is defending federal hospitals from medical malpractice claims will soon find himself in a very different role: heading the Justice Department's operations in Iraq.

Phil Lynch, 56, has been appointed to a one-year stint as 'rule of law coordinator' in Baghdad, meaning he will oversee efforts to advise judges, lawyers and police officers in Iraq's nascent, overwhelmed legal system.

A little more about Lynch is in a press release from the U.S. Attorney's Office (W.D. Wash.).

Women's Prisons: Who's Watching the Guards?

State announces reforms to combat abuse in women's prisons, Seattle P-I, Dec. 20, 2007.

With rising complaints by female prison inmates of sex abuse by guards, the state Department of Corrections said it will hire more women staff members, increase the number of surveillance cameras in prisons and have the State Patrol investigate complaints.

The state has received scores of complaints about sex abuse in recent months, and a class-action lawsuit has been filed against the state by four current or former inmates.

The state has three prisons for women: the Pine Lodge Corrections Center for Women (near Spokane), the Washington Corrections Center for Women at Purdy (north of Gig Harbor), and the Mission Creek Corrections Center for Women (near Bremerton).

A class-action against the state, brought by four current and former inmates, is pending in Thurston County Superior Court. The plaintiffs are represented by Beth Colgan, of Columbia Legal Services.

See also State acts on abuse cases at women's prison, Seattle Times, Dec. 20, 2007.
Washington Corrections Center for Women

$22 million claim filed for boy starved by parents

Yesterday Snohomish County Superior Court Judge Thomas Wynne convicted a father and his girlfriend of criminal mistreatment, finding they intentionally started a four-year-old boy (who is now in foster care). Couple convicted of denying food to 4-year-old, Seattle Times, Dec. 20, 2007. Today a lawyer filed a $22 million claim against the state Department of Social and Health Services on behalf of the boy, for failing to take proper action on complaints that the boy was malnourished. $22 million claim filed for boy starved by parents, Seattle P-I, Dec. 20, 2007.

Flexcar Parking

Surely you've noted parking spots reserved for Flexcars -- there are a lot on campus as well as scattered around town in private parking lots. There are also about two dozen on Seattle streets (the signs say "carshare vehicles," not "Flexcar"). Turns out their legal status is iffy. Sure, the county contracted with Flexcar (to encourage transit use and reduce pollution) and the Seattle Department of Transportation paid for and erected the signs. But nobody amended the Seattle Municipal Code to say that using a spot is a ticketable (or towable) offense. Oops. This spot's reserved for Flexcar? Not exactly, Crosscut, Nov. 27, 2007.

Note: the UW spots are legit, and parking your own car there will get you a ticket.

Is embezzlement in the air?

Is embezzlement in the air?, Crosscut, Dec. 10, 2007. Links to two stories about indictments for stealing $1 million or more from one's employer by phonying credit card charges (and using other techniques) -- one at Milgard Windows in Tacoma, one at Microsoft and Expedia.

Seattle's role in inventing new torture techniques

Seattle's role in inventing new torture techniques, Crosscut, Dec. 17, 2007. A brief article. A professor at Reed College has a book saying that most torture innovations have come from democracies, not totalitarian regimes. The article quotes a passage about a distressing technique used by the Seattle police 1922-26.