Poor Trial Ad Skills Lead to Suspension

Calif. Suspends Lawyer Who Botched Gang-Related Shooting Case, Orders Arbitration Over Disputed Fee - ABA Journal, March 18, 2011. The disciplinary proceeding included three counts (with subcounts). The list right out of a Trial Ad syllabus is from Count One:

[R]espondent failed to perform with competence in the criminal case by:

• Performing little, if any, pre-trial case development, planning, or investigation on behalf of Rios.
• Failing to adequately argue motions in limine.
• Failing to make a coherent opening statement.
• Repeatedly failing to ask admissible and relevant questions.
• Repeatedly failing to assert proper objections.
• Repeatedly failing to move to exclude improper testimony.
• Failing to advance a defense theory.
• Repeatedly failing to adequately cross-examine witnesses.
• Failing to properly handle expert witness testimony on gang-related matters.
• Repeatedly failing to properly impeach witnesses’ testimony.
• Failing to adequately prepare Rios for direct and cross examination.
• Repeatedly failing to present evidence or elicit facts on behalf of Rios.
• Failing to diligently perform the services for which he was hire

In re Harlan R. Antler, STIPULATION RE FACTS, CONCLUSIONS OF LAW AND DISPOSITION AND ORDER APPROVING (Sept. 20, 2010).

Senior judges keep 9th Circuit courthouses open

With vacant judgeships and mounting caseloads, the ninth circuit relies on its senior judges. Carol J. Williams, Senior Judges Keep 9th Circuit Courthouses Open, L.A. Times, March 14, 2011. Featured is 88-year-old Judge Betty Fletcher (UW Law class of 1956) who carries a full caseload.

Mark Twain on Ability to Judge Expressions

A bit of my leisure reading reminded me of trial ad.

After visiting "The Last Supper"—and a lot of other famous European art—Mark Twain riffed on people's ability (or inability) to judge the meaning behind expressions.

It vexes me to hear people talk so glibly of "feeling," "expression," "tone," and those other easily acquired and inexpensive technicalities of art that make such a fine show in conversations concerning pictures. There is not one man in seventy-five hundred that can tell what a pictured face is intended to express. There is not one man in five hundred that can go into a court-room and be sure that he will not mistake some harmless innocent of a juryman for the black-hearted assassin on trial. Yet such people talk of "character" and presume to interpret "expression" in pictures. There is an old story that Matthews, the actor, was once lauding the ability of the human face to express the passions and emotions hidden in the breast. He said the countenance could disclose what was passing in the hear plainer than the tongue could.

"Now," he said, "observe my face—what does it express?"

"Despair!"

"Bah, it expresses peaceful resignation! What does this express?"

"Rage!"

"Stuff! It means terror! This!"

"Imbecility!"

"Fool! It is smothered ferocity! Now this!"

"Joy!"

"Oh, perdition! Any ass can see it means insanity!"

Expression! People coolly pretend to read it who would think themselves presumptuous if they pretended to interpret the hieroglyphics on the obelisks of Luxor—yet they are fully as competent to do the one thing as the other.

Mark Twain, Innocents Abroad, ch. 19.

What do you think? Did Twain have it right? If most people are this bad at reading faces, why do we put so much faith in a juror deciding that a witness's fidgeting and stammering means lying rather than sincerity or uncertainty rather than shyness?

Graphic: picture of young Mark Twain lifted from America.gov, Mark Twain Abroad.

Cross-Examination Handbook

The other side puts a witness on the stand, and the jury the hears a selection of facts and impressions—generally the selection that the other side wants it to hear. Now you get the wonderful opportunity to cross-examine the witness. At the end of your cross, you'd like the other side's case to seem weaker and your own to seem stronger, of course, but how do you do that?

A new textbook offers guidance. Cross-Examination Handbook: Persuasion, Strategies and Techniques is by our neighbors Ronald H. Clark (Distinguished Practitioner in residence at Seattle U) and William S. Bailey (partner in Fury Bailey and part-time faculty at Seattle U and the UW) with George R. Dekle (professor at University of Florida).

A book that covers all of trial advocacy can only devote a chapter or two to cross-examination, but this one is all cross, all the time. (Bailey argues for a whole course on cross in this post.) The authors break cross-examination down into understandable pieces. The text is very accessible, even conversational in places.

How do you plan a cross? It might be obvious, but I hadn't really thought about starting with the closing argument: if I want to say ___ in closing, what do I need to get the witness to say on cross now?

The book discusses the difference between cross-examination when you are trying to get the witness to concede facts that will bolster your case and cross when you are trying to discredit the witness. And it offers tips for doing each.

You might use many techniques with one witness -- seeking factual concessions AND impeaching testimony on one point, for instance -- and this book also gives some tips for structuring your cross overall.

There are chapter previews and review lists with text boxes to help you study and retain the information. Several chapters illustrate points with two fictitious cases—a civil wrongful death case and a criminal armed robbery case—so you can see how the different cross techniques can be used with one set of facts and even one witness.

The authors also draw examples from real-life cases. Some are from history (Abraham Lincoln's legendary almanac cross-examination (more on that on the authors' blog) and Clarence Darrow's cross of William Jennings Bryan in the Scopes trial. Others are much more recent. Seattle sports fans might appreciate the examples from the cases involving the Sonics' leaving Seattle and Huskies football coach Rick Neuheisel being fired for gambling (March Madness anyone?). (Maybe these bits of Seattle sports history are still painful to some fans.)

It's been many, many years since I took Evidence. I'd find it very helpful to go over the list of common objections to cross (pp. 344-45) and the summaries of the evidence and ethics rules they stem from (pp. 346-54), as well as the advice about tactics for meeting objections (pp. 354-55).

For classroom use—or even dedicated self-education—there are lots of exercises to try, with supporting documents on a CD-ROM that's included with the book.

I'm a librarian, not a trial lawyer. For a practitioner's perspective, see this warm review on MS Litigation Review and Commentary.

The book has a website and a companion blog (Cross-Examination Blog).

The law library's copy hasn't been cataloged yet—I've had it in my living room so I could write this post—but it will be soon. It will be included in this catalog record.

"Voir Google"?

Interesting article gives specific examples of attorneys weighing jurors based on online activity -- as well as judges' reactions to the practice. Internet v. Courts: Googling for the perfect juror, Reuters Legal, Feb. 17, 2011.

One 24-year-old was excluded from a jury because of "antibusiness sentiments" in blog posts.

[The excluded juror], for his part, said in an interview that while he understands why ConAgra's lawyers viewed his online activities as evidence of bias, he doesn't believe they should have been taken so seriously. "This is the Internet," he said. "It's a different realm. It's like a playground."

Thanks: Mike Meredith.

Jury Nullification Advocate With Court Pulpit Charged - NYTimes.com

A former chemistry professor is charged with jury tampering because of his activity handing out brochures outside courthouses, telling potential jurors that they have the right to ignore the law if they disagree with it. Jury Nullification Advocate With Court Pulpit Charged, NYTimes.com, Feb. 25, 2011.

Thanks: Maureen Howard.

Using the Internet as a Tool for Cross-Examination

An article offers tips for Using the Internet as a Tool for Cross-Examination, Law Technology News (N.Y.L.J.), March 1, 2011. I've seen a number of articles about using information found in, say, Facebook to impeach a witness. This article goes further in offering two sample series of questions, e.g.,

Q: Can we agree your recovery was a good one?

A: I wouldn't say that.

Q: You've certainly participated in some challenging activities, haven't you?

A: What do you mean?

Q: Like skiing, true?

A: I tried, but was unable to ski.

* * *

Eventually, the cross-examiner sets the trap and undoes the witness with a YouTube video, perhaps like this one:



(I have no reason to believe the skier in this video has ever been a plaintiff in a personal injury case or, if so, misled the jury about the extent of his injuries. Looks pretty good, doesn't he?)

Race and the Criminal Justice System

People of color are over-represented at every stage of the criminal justice system, from arrest through sentencing and incarceration.

Paula Ditton Henzel, Disproportionality and Disparity in Adult Felony Sentencing 2003 (Wash. State Sentencing Guidelines Comm'n, [2003]).

What are the causes, effects, and possible cures for this serious disproportionality?

A state-wide Task Force on Race and the Criminal Justice System has been meeting for the last few months and will meet with the Washington Supreme Court March 2.

The Law Library has prepared a guide, linking to Washington State studies and other materials. See Race in the Criminal Justice System.

Next Thursday, the UW Minority Law Students Association presents a panel, Racial Disparity & The Criminal Justice System, 3:30-5:

Welcome by Dean Kellye Testy
Panelists:
• The Honorable Veronica Alicea-Galvan, Des Moines, Washington Municipal Court
• Professor Katherine Beckett, UW Department of Sociology and UW Law, Societies & Justice Program
• Officer Jeff Geoghagan, Seattle PD SWAT
• Professor Alexes Harris, UW Department of Sociology
• Anita Khandelwal, The Defender Association
• Mark Larson, Chief Criminal Deputy of the King County Prosecuting Attorney's Office

Moderated by Professor Mary D. Fan

Seattle University School of Law is also having speakers on this and related topics as part of its Diversity Week 2011. Thursday afternoon has a CLE, Advocacy Strategies for Protecting Civil Rights (3:30-5:30), followed by a reception (5:30-7:30):

The reception following the CLE will provide a forum to discuss how lawyers, law students and community members can address racial bias in the criminal justice system. The discussion will be facilitated by the Co-Chairs of the Task Force on Race and the Criminal Justice System, Professor Robert Chang, director of the Fred T. Korematsu Center for Law and Equality, and Judge Steven González, chair of the WA Access to Justice Board.

If you're inspired by the UW panel, you can hop up Capitol Hill for the reception at SU.

"Hot Coffee" Documentary Challenges "Tort Reform"

Oregon Attorney's Documentary 'Hot Coffee' Makes the Sundance Cut, ABA Journal, Feb. 1, 2011. Susan Saladoff explains her project here:



The movie's website includes links to resources. And this page gives links to Democracy Now! segments with film clips and interviews. One person interviewed is former Mississippi Justice Oliver Diaz whose election was opposed by the U.S. Chamber of Commerce. After he won, the local U.S. Attorney prosecuted him for campaign finance violations (he was acquitted) and then for tax violations (he was acquitted again).

The film got good press at Sundance. I'm looking forward to when the website includes a list of cities where it's playing -- and Seattle is one of them.

Documentary on Media, Race, Crime, and Punishment

Juror Number Six (2008) -- a short documentary on the Web -- explores the media, race, and the criminal justice system. Dozens of clips from television news, drama, and reality programs vividly illustrate how media shapes our perceptions (and jurors' perceptions) of crime and criminals. Crime has been going down, and yet crime is portrayed much, much more. Fear sells.

While the news scares viewers, dramas might actually comfort us. On "Law and Order," for instance (and I've happily watched hundreds of hours of it!), we see far more African American judges, prosecutors, and defense attorneys than are present in most communities. Defendants all seem to have counsel right away, and generally very sharp counsel. And so, the film suggests, we are led to believe that the system is much fairer than it actually is.

The documentary's producer lists impressive partners:

• The Berkman Center for Internet & Society at Harvard Law School
• The Center for Communications and Community at UCLA
• The Center for Justice in Capital Cases at DePaul University, College of Law
• The Center on the Media, Crime and Justice at the City University of New York’s John Jay College of Criminal Justice
• The Center on Race, Crime and Justice at CUNY John Jay College of Criminal Justice
• The Charles Hamilton Houston Institute for Race & Justice at Harvard Law School
• The Department of Journalism at San Francisco State University
• The Division of Cinema-Television at Southern Methodist University
• USC Annenberg Institute for Justice and Journalism
• The Kirwan Institute for the Study of Race and Ethnicity at Ohio State University
• The Media and Culture Program in Bentley College’s English Department

More on The New Jim Crow

Real Change has a long interview with Michelle Alexander, the author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (see earlier post). Rosette Royale, One Nation, Under Lock and Key, Real Change, Feb. 9-15, 2011.

Angry Jurors Hope to Give Acquitted Teen Their Jury Pay

The Cleveland Plain Dealer reports that the county prosecutor has brought cases against hundreds of people with very little evidence. In less than a year, judges acquitted 364 defendants mid-trial. In one recent case, the jury not only acquitted, but some of the jurors wanted to give their jury pay to the defendant if he got his GED. Angry Jurors Hope to Give Acquitted Teen Their Jury Pay - News - ABA Journal, Feb. 10, 2011.

Thanks: Maureen Howard.

Judges Surveyed About Lawyers

How well do lawyers represent their clients? It's a hard question to answer. One approach would be to ask the judges who observe the lawyers at work, and that's just what Judge Richard A. Posner and Professor Albert H. Yoon have done: What Judges Think of the Quality of Legal Representation, 63 Stan. L. Rev. 317 (2010).

Here's the short version of their findings, from the abstract:

We find that judges perceive significant disparities in the quality of legal representation, both within and across areas of the law. In many instances, the underlying causes of these disparities can be traced to the resources of the litigants. The judges’ responses also suggest that they respond differently than juries to these disparities, and that the effect of these disparities on juries may be more pronounced in civil than in criminal cases.

But don't stop with the abstract! The more detailed findings are very interesting.

Judges' backgrounds.
I was surprised to see the number of judges with experience in criminal defense, since I heard or read somewhere that prosecutors more often became judges. But the patterns vary between trial and appellate courts and between federal and state courts.

exp	fed app	fed trial	state app	state trial
crim defense	19%	36%	29%	40%
prosecution	9%	14%	29%	44%

p. 323.

Disparities in civil cases.
The civil areas where federal trial judges saw the greatest disparity were civil rights and personal injury/malpractice. When there was a disparity, the defendant had better representation. State judges saw the greatest disparities in family law and personal injury/malpractice. Again, when there was a disparity in the tort cases, it was generally the defense that had the advantage.

Judges said that intellectual property and commercial litigation cases seldom had a great disparity between the sides' lawyers. These lawyers were rated between "good" and "excellent" -- i.e., at the top of the scale.

What about criminal cases?

Federal judges exhibited a clear divide, ranking public defenders highest, followed closely by prosecutors. Both federal appellate and district judges deemed court-appointed and privately retained counsel markedly (and statistically significantly) worse, although they disagreed which group was the worst. In contrast, state judges perceived greater parity among criminal lawyers, with both appellate and trial judges giving their highest ratings to retained counsel. Appellate judges generally gave similarly high scores to prosecutors and public defenders, whereas trial judges thought privately retained counsel distinctly better than other criminal lawyers.

pp. 325-26 (footnotes omitted). Judges across all categories said that they observed significant disparities in quality between prosecution and defense 21-40% of the time.


When there is a disparity in representation, many judges conduct additional research. p. 335. (But they aren't happy about this burden -- see p. 346.) The judges thought that many jurors favor litigants with better lawyers, but they thought they themselves could rise above the disparate representation. p. 326. But in many situations, they thought that the representation did not make much difference to the outcomes of the cases. p. 327. The authors discuss this perception -- and related studies about the impact of counsel in criminal cases -- at pp. 341-43.

Change law school?
The survey asked judges what could be done to improve the quality of representation.

About law schools, judges were in general agreement. The most common response in each judge group was that law schools should provide more coursework oriented to instilling practice-oriented skills. The second most popular response was expansion of core curriculum—-that is, courses required of all students—-to ensure a stronger foundation for practice. More than two-thirds of the judges in each group proposed changes in law school curricula, while no more than 10% in any group recommended higher admissions standards. Recommendations to make tuition more affordable drew slightly higher but still modest support (ranging between 5% and 14%).

p. 338 (footnote omitted)

The judges would like to see better trial skills:

Judges expressed concern about the effectiveness of the bar at trial advocacy. One federal district judge remarked that lawyers are “smart, well-prepared and know the law and write great briefs—but if the case goes to trial, their trial skills are nowhere near what their pre-trial skills were.”

p. 346

The whole article is worth a look: there are lots of interesting nuggets, and the footnotes cite other intriguing studies about lawyers' effectiveness.

Memoirs of Death Penalty Lawyering

Andrea Lyon and David Dow have a lot in common: they both are lawyers, they both represent indigent defendants in criminal cases, they both teach in law school clinics, and they both have written absorbing memoirs about their work. (To protect client confidentiality, both changed names and details of cases but say they are representing real events honestly.)

There are some differences, too. For instance, Dow (in Texas) never had a governor impose a moratorium on the death penalty, but Lyon did (in Illinois). And I assume Dow's ability to handle homicides was never questioned because of his gender.

Angel of Death Row is Lyon's memoir, taking the reader from her legal education at a school that emphasized clinical experiences to the Cook County public defender's office, where she eventually rose to the position of chief of the Homicide Task Force. After she left public defense, she founded the Illinois Capital Resource Center and later moved to teaching.

Lyon reports the investigations and trials of many cases. "Winning" a case does not always mean the defendant is acquitted -- it can mean that a defendant who is charged with first degree murder is convicted of manslaughter. And when a defendant is convicted of a capital offense, it is a defense victory if the penalty phase of the trial results in a sentence of life imprisonment. Remarkably, in 19 of the 19 capital cases Lyon has tried through the penalty phase, not one of the defendants was sentenced to death.

In Autobiography of an Execution, Dow weaves together several capital cases at once. Unlike Lyon, who was generally the trial attorney, Dow and his associates focused on post-conviction relief, and trial counsel had often put up lackluster defenses at best. For instance, two of his clients were represented by a lawyer who fell asleep during trial. Many of the clients' appellate lawyers failed to raise good potential claims. By the time the cases got to Dow, there were limits to what he could do. And so the book describes flurries of research, motions, petitions -- and several executions.

Both writers convey the toll the work can take on lawyers. The main reason Lyon left the defender's office was that she wanted to spend time with her daughter and not work on cases around the clock. Dow often numbed himself with alcohol, but also found comfort in his family life -- wife, son, and dog.

Angel of Death Row is in Good Reads at KF373.L963 A3 2010. AndreaLyon.com (includes information about the book and much more). WorldCat record.

The Autobiography of an Execution is in the Classified Stacks at KF373.D635 A3 2010. Publisher's page. WorldCat record.

Diversity Science Research

The UW Alumni Association offers How Diversity Science Research Informs Law and Policy, Wed., Feb. 23, 2011, at 7 pm:

Despite societal efforts to promote equality and harmonious intergroup relationships, policies and practices employed in the service of these goals are not always successful. Drs. Kaiser and Tropp draw upon innovations from psychological science to offer empirical evidence and practical strategies for fostering positive outcomes in diverse settings, such as schools and workplaces.

Any applications to work with colleagues, witnesses, and jurors?

The event is free, but an RSVP is required.

Originalism and the Jury

Ohio State Law Journal has a symposium on "Originalism and the Jury":

Suja A. Thomas, Foreword, 71 Ohio St. L.J. 883 (2010).

Douglas A. Berman, Making the Framers’ Case, and a Modern Case, For Jury Involvement in Habeas Adjudication, 71 Ohio St. L.J. 887 (2010).

Brian T. Fitzpatrick, Originalism and Summary Judgment, 71 Ohio St. L.J. 919 (2010).

Judge Nancy Gertner, Juries and Originalism: Giving “Intelligible Content” to the Right to a Jury Trial, 71 Ohio St. L.J. 935 (2010).

Joan L. Larsen, Ancient Juries and Modern Judges: Originalism’s Uneasy Relationship with the Jury, 71 Ohio St. L.J. 959 (2010).

William E. Nelson, The Lawfinding Power of Colonial American Juries, 71 Ohio St. L.J. 1003 (2010).

James Oldham, On the Question of a Complexity Exception to the Seventh Amendment Guarantee of Trial by Jury, 71 Ohio St. L.J. 1031 (2010).

Gene Schaerr and Jed Brinton, Business and Jury Trials: The Framers’ Vision Versus Modern Reality, 71 Ohio St. L.J. 1055 (2010).

Suja A. Thomas, A Limitation on Congress: “In Suits at common law”, 71 Ohio St. L.J. 1071 (2010).

Juicy stuff for constitutional law, legal history, and trial practice buffs!

I will never complain about jury instructions again! «

Justin Walsh, writing on The Amateur Law Professor blog, shares a choice jury instruction from 1869 here: I will never complain about jury instructions again! «

An iPad in Your Trial Briefcase?

Two new iPad apps are designed to help lawyers keep track of jurors during selection and trial. A reviewer says they seem quite promising -- much better than moving sticky notes around a legal pad! Each app is just $9.99, so they're pretty cheap to try out (if you already have an iPad, of course). Ted Brooks, Selecting and Monitoring a Jury on an iPad, Legal Technology News, Jan. 21, 2011.

The reviewer was much more cautious about a couple of iPad apps for managing and displaying trial exhibits. Ted Brooks, Two iPad Apps Make Their Cases for Trial, Legal Technology News, Jan. 11, 2011. One of those apps is also $9.99; the other is $89.99.

Graphic: screen shot of Jury Tracker app from Legal Technology News review.

Loans for Lawsuits: High Price, Little Regulation

The New York Times and the Center for Public Integrity (a nonprofit for investigative journalism in DC) took a look at the industry that lends money to plaintiffs until their settlements or awards come in. The interest rates are very high -- a $10,000 loan can become a $30,000 debt very quickly -- but the industry says they are justified because of the risk that the plaintiffs lose their cases. Others say the practice is abusive. See Benjamin Appelbaum, Lawsuit Loans Add New Risk for the Injured, Jan. 16, 2011.

Articles on E-Discovery Sanctions, Federal District Courts, and More

A recent study finds increasing sanctions of lawyers and their clients for e-discovery violations. Dan H. Willoughby, Jr., Rose Hunter Jones & Gregory R. Antine, Sanctions for E-Discovery Violations: By the Numbers, 60 Duke L.J. 789 (2010). You can find a brief discussion of this 76-page article here: Study: Lawyer Sanctions Over Electronic Discovery on the Rise - Law Blog - WSJ, Jan. 13, 2011.

That article caught the eye of the Wall Street Journal's blogger, but it's just one in a special symposium issue: the 2010 Civil Litigation Review Conference. Here are the rest of the articles in that issue:

John G. Koeltl, Introduction, Progress in the Spirit of Rule 1 ... 537

John H. Beisner, Discovering a Better Way: The Need for Effective Civil Litigation Reform ... 547

Paul D. Carrington, Politics and Civil Procedure Rulemaking: Reflections on Experience ... 597

Steven S. Gensler, Judicial Case Management: Caught in the Crossfire ... 669

Patrick E. Higginbotham,The Present Plight of the United States District Courts ... 745

Emery G. Lee III & Thomas E. Willging, Defining the Problem of Cost in Federal Civil Litigation ... 765

For even more scholarship on civil litigation, see the shorter e-only articles on Duke Law Journal's Workshop site.

Patrick E. Higginbotham has been a federal judge for 35 years (N.D. Tex. 1975-82, 5th Cir. 1982-present), so I was curious about what he thinks the plight of federal district courts is. He observes that conducting trials has become a very small part of the work of federal trial court judges -- the average district judge has almost 300 days a year with no trials. While some see this as a good thing, Judge Higginbotham says it is "a manifestation of the illness" he discusses.

He argues "that federal trial courts are now more like administrative agencies than trial courts in their present efforts to discharge their duty to decide cases or controversies, and that we are witnessing the death of an institution whose structure is as old as the Republic."

The changes Judge Higginbotham examines are the rise of arbitration and other ADR, the decline of attorneys with trial experience, the loss of the 12-person jury, and "the drift of the federal courts to the civil law model and their capture by the administrative model." He urges a return to the trial model.

Thanks: Aaron McElhose