Irving Younger -- Still Teaching

Irving Younger was a giant of trial advocacy -- professor (NYU, Cornell, Minnesota), practitioner, judge (City of New York, 1969-74). He was a masterful teacher and was famous for his lectures on evidence, discovery, and other topics.

Even though Younger died in 1988, he is still teaching, via recordings. See (and hear!) Trial Evidence Series (14 videotapes), KF8935 .Y68 1982 at Reference Area; The Ten Commandments for Cross-Examination (DVD), KF8920 T46 2000 at Reference Area.

Now the ABA Section of Litigation has published a book collecting a number of his speeches: The Irving Younger Collection: Wisdom & Wit from the Master of Trial Advocacy (Stephen D. Easton ed., 2010), KF213.Y68 E17 2010 at Classified Stacks. You can read his observations and tips on discovery, expert witnesses, scientific evidence, hearsay, jury selection, and cross-examination. You can also read his speeches on historic cases: Ulysses, Alger Hiss, and Erie.

The tone is casual, conveying messages through war stories, quips, and examples. Here's a passage I flipped to:

Lewis on cross-examination: "When this man jumped up on the running board, was he disguised in any way?"

"No."

"What was he wearing?"

"What I've told you -- khaki pants and a T-shirt."

"By a T-shirt, do you mean man's underwear, cut pretty short at the arms?"

"Yes."

"Did you get a good look at those arms?"

"I sure did. One of those arms was holding a gun to my head."

"Was there anything unusual about that man's arms?"

"No."

And at that point, Lewis turned to DeSisto and said,"DeSisto, stand up. Take off your jacket." He took it off. "Roll up your sleeves." He rolled up his sleeves and there was an audible gasp in the courtroom because from wrist to shoulder, both arms were tattooed like the tattooed man in the circus. The government stipulated that DeSisto had been tattooed in that fashion at the age of 20 some odd; he was now well into his forties. And Lews sat down. That's it. What more can you do on cross-examination? You have raised a serious question not as to whether there was a hijacking, not as to whether somebody didn't jump up on the running board, but as to whether Wimpy has identified the man who did it correctly.

p. 258.

If you want to be a trial lawyer or if, like me, you're just interested in trials, The Irving Younger Collection is worth checking out.

Magistrate Scolds Lawyers for Deposition Bickering

United States Magistrate Peggy A. Leen was faced with a 185 pages in which lawyers accused one another of behaving badly at depositions. They had behaved badly so she admonished them for it. But she also made it clear that she had better things to do than wade through hundreds of pages of tattling and whining. Mazzeo v. Gibbons, LV Police: Lawyers dressed down, Las Vegas Review-Journal, Aug. 3, 2010.

Judge Leen's order is here. Its conclusion:

The exchanges related in excruciating, repetitive detail in the moving and responsive papers and their attachments were painful to read. If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times:

I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, non-argumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as "if you remember," "if you know," "don’t guess," "you’ve answered the question," and "do you understand the question" are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification.

Although these papers, and the conduct they relate, make me feel like a school marm scolding little boys, I am the judge whose duty it is to decide this motion. Accordingly, Mr. Kossack and Mr. Cannon are admonished for engaging in conduct which I know you know violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have engaged illustrates.

Judge Leen very clearly was fed up with these lawyers, but that last sentence is classy.

Recusal Because of Remarks at Conference?

In a biotech case -- about the patentability of two breast cancer genes -- plaintiffs are asking the chief judge of the Federal Circuit to recuse himself, even before the panel is selected, because of remarks he made at a conference about the issue. Citing Possible Bias, ACLU Asks Rader to Recuse Himself in Myriad Case, Corporate Counsel (law.com), Aug. 5, 2010.

Howard on Prosecutors' Peremptory Challenges

Professor Maureen A. Howard tackles the use of peremptory challenges in criminal cases. Taking the High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, 23 Geo. J. Legal Ethics 369 (2010), available on LexisNexis, Westlaw.

Using published studies and her own trial experience, Professor Howard questions the usefulness of peremptory challenges.

She moves on to explore the costs of their use: limiting the breadth of community participation and increasing the public's perception that lawyers are manipulating the system. She argues that prosecutors should voluntarily waive their right to use peremptory challenges.

Responding to potential concerns that giving up peremptory challenges would allow biased jurors to serve, Professor Howard says that the solution would be "a broader definition and application of a challenge for cause, not necessarily retention of the current peremptory challenge practice." (p. 415)

She concludes:

The use of peremptory challneges has questionable value and risks violating the constitutional rights of both defendants and prospective jurors. . . . Instead of waiting for judges and legislators to respond to the decades of criticism levied at the use of peremptory challenges and the narrow definition and application of for-cause challenges, the prosecutor should 'take the high road' and waive peremptories.

Can We Improve Judicial Selection in Washington?

Unlike federal judges, who are appointed by the President with the advice and consent of the Senate, our state judges are elected by the people. But in practice, most of them are first appointed by the governor to fill mid-term vacancies and only face election if they are opposed at the end of their terms. There is very little public scrutiny of the appointment process, and when elections roll around, many voters don't have good tools for evaluating candidates. Professor William R. Andersen turns his attention to these issues in Judicial Selection in Washington -- Taking Elections Seriously, 33 Seattle U. L. Rev. 605 (2010), available on HeinOnline, LexisNexis, Westlaw.

Professor Andersen suggests that some problems cannot be fixed within the framework of our election system, but some can.

Some may decry big-money campaigns for judgeships, but Supreme Court precedent limits what can be done. And if there are to be elections, then judges will have to participate in campaigning -- raising money, giving speeches, and so on. To address problems resulting from this aspect of electing judges, Professor Andersen recommends revising the rules for recusal, and he says that "serious work is going on in professional bodies to make necessary revisions." (p. 609)

To make selection of judges more informed and transparent, Andersen urges "a borad-based and intentionally diverse citizen's commission charged with evaluating judicial candidates." (p. 614)

He also suggests regular, objective performance evaluations of judges, and he reports that systems for evaluating judges are being tried around the country (p. 612), citing the National Center for State Courts page on Judicial Performance Evaluation, which links to information from 18 states, including Washington. (By the way, the NCSC link is broken for Washington State's Walsh Commission Report, The People Shall Judge: Restoring Citizen Control to Judicial Selection (1996), but this link works. Prof. Andersen was a member of the Walsh Commission.)

Farewell to Stuart Scheingold, Scholar of Cause Lawyering

Stuart Scheingold, professor emeritus of political science and a leading scholar of law and politics, has died. Obituary: UW professor renowned for work on law, politics, Seattle Times, June 28, 2010.

"He was quite simply one of the world's leading commentators on law and politics," said Amherst College's Austin Sarat, a professor of jurisprudence and political science with whom Professor Scheingold directed the multivolume, internationally oriented Cause Lawyering Project.

Scheingold's works include:

• The Cultural Lives of Cause Lawyers (Austin Sarat & Stuart A. Scheingold eds. 2008), KF299.P8 C85 2008 at Classified Stacks


• Cause Lawyers and Social Movements (Austin Sarat & Stuart A. Scheingold eds. 2006), KF299.P8 C38 2006 at Classified Stacks
  
• The Worlds Cause Lawyers Make: Structure and Agency in Legal Practice (Austin Sarat & Stuart A. Scheingold eds. 2005), K118.P82 W67 2005 at Classified Stacks


• Something to Believe in : Politics, Professionalism, and Cause Lawyering (Austin Sarat & Stuart A. Scheingold eds., 2004), KF299.P8 S334 2004 at Classified Stacks
  
• Cause Lawyering and the State in a Global Era (Austin Sarat & Stuart A. Scheingold eds. 2001), K118.P82 C38 2001 at Classified Stacks


• Cause Lawyering: Political Commitments and Professional Responsibilities (Austin Sarat & Stuart A. Scheingold eds., 1998), K487.P65 Z92 1998 at Classified Stacks


• Stuart A. Scheingold, The Politics of Law and Order: Street Crime and Public Policy (1984), HV6789 .S32 1984 at Classified Stacks


• Stuart A. Scheingold, The Politics of Rights: Lawyers, Public Policy, and Political Change (1974), KF380 .S3 at Classified Stacks

For more -- including many works on European integration -- see this list on WorldCat.

Prof. Scheingold's faculty profile is here. In his honor, the Department of Political Science has the Stuart A. Scheingold Professorship of Social Justice (now held by Christopher Parker).

Photo from Seattle Times.

Decision Making in Settlement and Litigation

When attorneys and their clients decide whether to settle and for how much, they try to predict how things will turn out if they go to trial, hoping, of course, to do better. In a study of thousands of civil cases, researchers found that attorneys were very often wrong. Three-fifths of plaintiffs and a quarter of defendants got a result at trial that was worse than the settlement they could have had. The cost of the error was much greater for defendants: plaintiffs' average error was $43,100, but defendants' average error was $1,140,000. Randall L. Kiser, Martin A. Asher, and Blakeley B. McShane, Let’s Not Make a Deal: An Empirical Study of Decision Making in Unsuccessful Settlement Negotiations, 5 J. Empirical Legal Studies 551, 566 ((2008).

Now the lead author of that study -- a consultant and former litigator -- has written a book aimed at lawyers and law students to help them see the problem of bad decision making and learn ways to improve it. Randall Kiser, Beyond Right and Wrong: The Power of Effective Decision Making for Attorneys and Clients, K126.K57 2010 at Classified Stacks. The book presents research studies to support its recommendations. As the author puts it:

This book differs from other books and articles on settlement negotiations in that it places greater weight on scientific evidence than the war stories of attorneys, mediators and judges; it assumes that empirical studies are more instructive than anecdotes and statistics are more dependable than surmise.

p. 5. But Kiser goes easy on his audience by presenting the social science without "probability theory, regression analysis, game theory," and so on "for a simple reason: attorneys generally don't like them, don't understand them and won't use them." So the book is a practical, how-to work backed by scholarship (but not weighed down by it).

It should be of interest for professional responsibility as well as trial practice and alternative dispute resolution.

People of Color Still Excluded from Southern Juries

The Equal Justice Initiative has released a study of eight southern states showing stark disparities in the representation of African Americans and Latinos on juries. Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (June 2010). Take a look at least at the executive summary and recommendations -- you'll want to keep going to see more, including both statistical analysis and the the stories of the people excluded from serving and the people convicted by all-white juries.

One striking example (p. 28): An African American woman who had lived in a county for 10 years and worked in the same job for 6 years was excluded because she "had no ties to the community." Instead of shrugging and walking away, she returned to the courthouse daily to observe the trial, including the naps of some white jurors during testimony. After the black defendant was convicted, she visited him in prison and helped him with his successful appeal.

Bryan Stevenson, EJI's executive director, was interviewed on All Things Considered yesterday. Listen to the story (or read a summary) here.

Can Arbitration Clause Block Consumer Class Action?

Cell phone companies -- and others -- often try to prevent consumer class actions by including provisions in contracts that the consumer will resolve any disputes individually in arbitration. But is there still a role for the consumer class action, pooling many consumers' small damages to get to a case that's worth litigating and will get the company's attention? See Alexander J. Casey, Arbitration Nation: Wireless Services Providers and Class Action Waivers, 6 Wash. J.L. Tech. & Arts 15 (2010).

The Washington Journal of Law, Technology & Arts is a new journal, replacing the Shidler Journal of Law, Commerce + Technology as part of a merger with the Law, Technology & Arts Group (LTA) a new interdisciplinary research unit at the UW law school. The Journal publishes concise legal analysis aimed at practicing attorneys. Do you have something to say about law and technology or the arts? The Journal accepts submissions from students, professors, and practicing attorneys.

Moot Court for Afghan Students

Despite the huge challenges posed by war, poverty, and disruption, law students in Afghanistan participated in this year's Philip C. Jessup International Law Moot Court Competition, supported by UW Prof. Jonathan Eddy and UW alumnus Mark Hough. Julie Case, Trials by Fire, Columns, June 2010.

King County judge charged over Knox letters

King County judge charged over Knox letters, SeattlePI.com, June 8, 2010.

Michael Heavey, a Superior Court judge who lives in West Seattle, is accused of violating the state's Code of Judicial Conduct by sending letters to three Italian judicial officials on Knox's behalf before her conviction in the murder of a fellow exchange student living with her in Perugia, Italy.

Divorce attorneys catching cheaters on Facebook - CNN.com

Divorce attorneys catching cheaters on Facebook - CNN.com
, June 1, 2010:

At least 80 percent of attorneys surveyed by the American Academy of Matrimonial Lawyers cited a growth in the number of cases that used social media over the last five years.

It's not just infidelity, which isn't the big deal in divorce that it was a generation ago. It's also a variety of other lies -- "No, honey, I haven't started drinking again!" or "I can't pay child support because I'm broke" -- that can be skewered by a Facebook status or snapshot.

CSI New York -- in the 1920s and 1930s!

In The Poisoner's Handbook, Deborah Blum tells the human and scientific stories of poison and investigation in the 1920s and 1930s, focusing on New York City and two crusading scientists: Charles Norris, the city's first medical examiner, and Alexander Gettler, the head chemist in the ME's office.

This work mixes a couple of nonfiction genres: true crime and popular science. A couple is found dead: accident or murder? Several family members die: all victims of disease or were they poisoned? It takes pretty sophisticated science to tell -- science that Norris and Gettler had to develop as they went along.

There's also some interesting social history. In addition to working on individual crimes, the scientists advocated (not always successfully) for public health measures -- workplace safety, a stronger FDA (able to ban, for instance, "medicines" with radium), and an end to Prohibition-era poisoning of alcohol (see Blum's account in Slate).

Deborah Blum, The Poisoner's Handbook: Murder and the Birth of Forensic Medicine in Jazz Age New York (HV6555.U62 N373 2010 at Good Reads). Publisher's page.

Malleable Memories

William Saletan of
Slate has begun an eight-part series on the work of famed memory researcher Elizabeth Loftus.

Part I, The Ministry of Truth, recounts a memory experiment Slate conducted: readers were shown photos of four actual news events and one faked event and asked to comment on what they remembered. Many "remembered" the events that never happened. Next they were told that four of the events were real and one was faked. Many chose one of the real events as the fake and continued to "remember" the false one.

Part II, Removable Truths, begins profiling Professor Loftus. Still to come:

• Part III, Leading the Witness
• Part IV, The Recipe
• Part V, Truth or Consequences?
• Part VI, The Road to Therapy
• Part VII, Training Humans
• Part VIII, The Future of the Past

I'll fill in those links after the articles appear. [June 25: Just remembered to do this!] In the meantime, if you'd like to read more about Loftus, here is a profile from the Association of Psychological Science Observer: Inside the Psychologist's Studio: The Road Taken.

For a deeper analysis of Loftus's work, see Do Justice and Let the Sky Fall: Elizabeth F. Loftus and Her Contributions to Science, Law, and Academic Freedom (Maryanne Garry & Harlene Hayne eds., 2006), BF109.L64 E45 2006 at Classified Stacks. One of the articles in this volume is Incorporating Elizabeth Loftus's Research on Memory into Reforms to Proect the Innocent, by Prof. Jacqueline McMurtrie, Director of the Innocence Project Northwest Clinic.

Female Advocates' Attire

How should women dress when they appear in court for their clients? Conventional wisdom suggests conservatively: a sober suit with a respectable blouse. But Professor Maureen Howard, Director of the UW's Trial Advocacy Program, suggests that effective advocates need to be credible, and that might mean dressing to reflect one's own personality and tastes.

The biggest risk of adopting "off the rack" clothing advice is ignoring one's own sense of personal authenticity in dress and manner. In such a situation, the clothing "becomes a "costume," undermining the lawyer's credibility and emphasizing the "play within a play" aspect of trial work. . . . A lawyer who maintains her integrity in her dress and emeanor and is consistently genuine -- consistently herself -- is more likely to be perceived as credible and trustworthy.

Maureen A. Howard, Beyond a Reasonable Doubt: One Size Does Not Fit All When It Comes to Courtroom Attire for Women, 45 Gonz. L. Rev. 209, 216 (2009/10), LexisNexis get 45 gonz l rev 209, Westlaw
Find 45 gonz l rev 209. Howard supports her argument with observations from her experience as well as citations to practice guides and scholarly literature.

Not Guilty By Reason Of Insanity: Balancing Public Safety With Disability Rights

This morning Weekday on KUOW looks at Not Guilty By Reason Of Insanity: Balancing Public Safety With Disability Rights, interviewing King County Prosecutor Dan Satterberg and Gonzaga law professor Mary Pat Treuthart.

They discuss Wash. Laws of 2010, ch. 263, which establishes a public safety review panel to advise courts when the state mental hospital recommends the release of someone who had been found not guilty by reason of insanity.

Innocence Project Clients from Clark County Freed

UW's Innocence Project Secures Two More Conviction Reversals, UW Law press release, April 22, 2010. Note links to other stories and video clips in sidebar.

Prosecutor Sleeps with Judge: Conflict of Interest?

Dahlia Lithwick writes about a distressing conflict of interest in a murder trial -- a conflict that does not seem to distress reviewing courts. Courting Disaster: The most outrageous thing about the Texas judge who slept with the prosecutor in a death-penalty case, Slate, April 24, 2010.

You don't even have to take a position on Hood's guilt, innocence, or the efficacy of the death penalty to recognize that when a judge and prosecutor are secret paramours, the integrity of the whole judicial system suffers.

Thanks: Jennifer Wertkin

Corrected 6/25/10

Trial Advocacy Resources Guide

Check out our library's new Trial Advocacy Resources guide. It lists print, video, and online resources for developing skills and finding academic studies. It has links to national and Washington State professional organizations and local courts. And it has information about newsletters and blogs that can help you stay current.

I've added it as a link in the sidebar to the right, so you can find it again easily if you want to.

Judge Franklin Burgess Dies

Judge Franklin D. Burgess, the second African American judge in the Western District of Washington, died last week. Gonzaga star Judge Franklin Burgess a genuine legend, Seattle Times, March 27, 2010.