This blog presents news items and resources relating to trial advocacy and the legal system, with a focus on Washington State. It was developed to support the Trial Advocacy Program at the University of Washington School of Law, but now has a broader coverage and a wider audience. In addition to information about trials and trial practice, you'll find notes about appellate practice, the courts, access to justice, and related topics.

Submitted by the Board of Governors of the Washington State Bar Association

Purpose: In 2005, the Supreme Court held that evidence of negotiations or compromise between a criminal defendant and a victim in efforts to compromise a potential civil claim is admissible in the criminal trial of the defendant, on grounds that ER 408 does not apply in criminal trials. See State v. O’Connor, 155 Wn.2d 335, 119 P.3d 806 (2005). The intent of this suggested amendment is to codify the O’Connor decision. A companion amendment to ER 410 also responds to the O’Connor decision.

Submitted by the Board of Governors of the Washington State Bar Association

Purpose: In 2005, the Supreme Court held that evidence of negotiations or compromise between a criminal defendant and a victim in efforts to compromise a potential civil claim is admissible in the criminal trial of the defendant, on grounds that ER 408 does not apply in criminal trials. See State v. O’Connor, 155 Wn.2d 335, 119 P.3d 806 (2005). The Court reasoned that the policy favoring civil settlements reflected in ER 408, although sufficient in a civil case to bar evidence relating to settlements and offers to settle, is insufficient in criminal cases. A companion amendment to ER 408 is intended to codify the O’Connor decision by expressly limiting ER 408 to civil cases.

Under RCW Chapter 10.22, if a defendant is prosecuted for a misdemeanor and the victim also has a civil remedy, the criminal prosecution may be compromised, subject to certain exceptions. RCW 10.22.010-.020. If the victim shows the court that he or she has received satisfaction for the injury, the court, in its discretion, may dismiss the charges. RCW 10.22.020. The Legislature has also created a civil action and civil penalties for criminal conversion of goods or merchandise or for not paying restaurant or hotel bills. See RCW 4.24.230. In these instances, the policy favoring civil settlements is heightened despite the possibility of a related criminal prosecution.

ER 410 makes evidence of criminal plea negotiations inadmissible in both civil and criminal trials. The suggested amendment would add a new paragraph (b) to the rule, intended to render evidence of civil negotiations or compromise pursuant to these statutes inadmissible in civil or criminal proceedings.

RCW 40.24 enables victims of domestic violence, stalking, or sexual assault to use an alternate address, so that state agencies may respond to public record requests without revealing their location. SB 6339, introduced Jan. 15 by Sen. Jeanne Kohl-Welles, would extend this protection to victims of trafficking.

Prof. Kelly's lecture, "Telling Children’s Stories: Legal Advocacy for Children and Youth," described the work of the Children and Youth Advocacy Clinic, which she directs. Most of the clinic's clients are kids between 12 and 18 who are in the foster care system. She talked about the difference that having an advocate can make in these children's lives. It was an interesting and moving talk.

Meanwhile, yesterday's P-I applauded a pilot program that the Clinic hopes to manage.

A promising bill from Rep. Pat Lantz would create an experiment giving all children an attorney when they face dependency hearings that determine whether they are placed in foster care, under what conditions their parents can keep them or have them back home and the like. The two-county pilot project envisioned by HB3048 is an excellent opportunity to see if legal representation makes a significant difference for kids, as we suspect it will.

The pilot project, administered through the University of Washington School of Law's Children and Youth Advocacy Clinic, would offer every child 12 and older the help of a trained attorney for dependency cases. The project would measure results such as whether there is more attention from a caseworker, more visits with siblings and separated parents, and better educational progress.

Foster Care: Worthy legal pilot, Seattle P-I, Jan. 30, 2008. The first person to comment on the editorial said: "In my almost 50 years of professional Social Work (including work with and within children's programs) this is the best idea I have heard."

In a ruling that could affect thousands of cases, a panel of King County judges said Wednesday that the state's toxicology lab engaged in 'fraudulent and scientifically unacceptable' practices that have compromised breath-test readings used to prosecute suspected drunken drivers.

The ruling directly affects eight cases currently before King County District Courts and more than 100 on hold pending the ruling. But it also could affect thousands that have already been resolved, because it is expected to open the door for appeals, attorneys say.

The "blistering 29-page ruling," State v. Ahmach (King County Dist. Ct. Jan. 30, 2008), is here. The judges on the panel were David Steiner, Darrell Phillipson, and Mark Chow.

Tuesday, January 29, 2008

Prof. Catherine Struve (University of Pennsylvania) sent this message to a list for Civil Procedure professors. With her permission, I'm posting it here:

I write to invite you to participate in the public-comment process for the many rules of procedure that were published for comment last August.

As you know, proposed amendments to the Appellate, Bankruptcy, Civil and Criminal Rules were published for comment in August, and comments on those proposals are due by February 15. One set of proposals concerns the method for computing time under all those sets of rules, and as the reporter to the subcommittee that coordinates the time-computation project I wanted to make sure to draw those proposals to your attention. A full explanation of the proposals can be found at http://www.uscourts.gov/rules/newrules1.htm (scroll down to the bottom of the page).

In brief, the principal time-computation proposal is to adopt a “days-are-days” approach to computing all periods of time, including short time periods. Under the current rules, intermediate weekends and holidays are omitted when computing short time periods but included when computing longer periods. By contrast, under the new proposal, intermediate weekends and holidays are counted no matter the length of the specified period.

The project has been published for comment as proposed amendments to Appellate Rule 26(a), Bankruptcy Rule 9006(a), Civil Rule 6(a), and Criminal Rule 45(a). Also published for comment are proposed amendments to numerous deadlines set by the Appellate, Bankruptcy, Civil and Criminal Rules; the goal of those amendments is to offset the effect of the change in time-counting approach by lengthening most short rule-based deadlines. In large measure, the rules-provided deadlines have been sufficiently lengthened to make the change to a days-are-days approach neutral to practitioners; moreover, in a few notable instances – such as the proposal to lengthen the current 10-day deadlines in Civil Rules 50, 52, and 59(b), (d) and (e) to 30 days – the deadlines proposals will give practitioners significantly more time than they now have. The new time-computation rules will govern a number of statutory deadlines that do not themselves provide a method for computing time, and so one of the project's current goals is to identify key statutory deadlines that the Standing Committee should recommend that Congress lengthen in order to offset the change in time-computation approach.

Your comments on any and all aspects of these proposals would be appreciated. Comments can be submitted electronically to Rules_Comments[at]ao.uscourts.gov .

Attorneys for players Reade Seligmann, Collin Finnerty and Dave Evans later sued Nifong, the city of Durham, police investigators and others. The suit accuses them of conducting "one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history."

The article doesn't explain why prosecutor Nifong was removed from the suit, but it says that the suit is the chief reason for his recent bankruptcy filing.

She organizes the article around four questions jurors ask: Whom can I trust in this lawsuit? (This includes comments about attorneys, experts, and the plaintiff.) If I were in a medical crisis, would I be in safe hands with this physician? In the circumstances, did the physician do the best he or she could? Did he or she make the right medical decision?

Summary

Juries make their decisions first and foremost based on their evaluationof the individual before them. Issues of character trump all other presumptions.Presuming the medicine is sound, the physician who passes the character test will be given the benefit of the doubt on his or her medicine. The challenge is to be that person of character in the often difficult, hostile environment of the courtroom.

Monday, January 28, 2008

In 2001 Frederick Russell's SUV hit a car with 7 WSU students, killing 3 and seriously injuring 3. He only this fall was tried, because he left the country and lived in Ireland until he was found and extradited. Frederick Russell was convicted of vehicular homicide Nov. 6 and sentenced Jan. 2. Russell sentenced to 14 years, Spokesman Review, Jan. 3, 2008.

Tossing away a prepared statement, Russell took a deep breath, fingered a black rosary with a silver cross provided by a former employer who had spoken on his behalf, and said, “I’m sorry. You waited too long to hear that.”

Russell is represented by Franscisco Duarte, who is also a UW Trial Ad instructor.

Violinist Peter Kaman's personal-injury lawsuit against the Seattle Symphony was dismissed this morning in King County Superior Court, but Kaman isn't done fighting: "This case isn't over until the fat lady sings," he said following the ruling.

The Seattle Symphony violinist plans to appeal Judge Catherine Shaffer's dismissal of his discrimination suit. The lawsuit originally presented two claims of discrimination and one claim alleging "outrage," or "the intentional infliction of emotional distress," according to Kaman's attorney, Brenda Little. The two discrimination claims were dismissed last November; the third claim was dismissed Friday.

The ruling turned on the statute of limitations. Over the violinist's 20+ years with the symphony, he experienced treatment amounting to the tort of outrage, Judge Shaffer said, but not within the three year statute of limitations. See also Melinda Bargreen, Symphony player loses ruling, gains confidence, Seattle Times, Jan. 26, 2008.

James Anthony Williams will be charged Tuesday with the first-degree murder of a 31-year-old Sierra Club worker outside her condominium on New Year's Eve, the King County Prosecuting Attorney's Office announced Saturday.

Authorities said Williams, 48, said he stabbed Shannon Harps.

Williams has a history of violence and has been diagnosed with paranoid schizophrenia.

But Senior Deputy Prosecutor Scott O'Toole said his office has concluded "he is competent" to stand trial for the death of Harps, based on Williams' interviews with authorities and his demeanor.

I've updated our library's guide, Blogs & RSS Feeds. It gives you links to directories of law-related blogs, information about using RSS feeds and feed readers, and tips for starting a blog of your own.

I've also posted a new guide listing several dozen law-related blogs by bloggers in Washington State (and one from Vancouver, BC). Check them out -- there might be something there for you, whether you want to follow criminal law, construction law, or Internet law.

The Sixth Amendment guarantees criminal defendants the right to a jury trial. We're used to thinking of this as an individual right, but Prof. Laura Appleman (Willamette Law) uses historical sources to show that colonial Americans thought of the right as largely a community right -- the people of the community had a right to be represented on a jury that would decide guilt and determine the sentence. This is more than an interesting historical byway, since the Supreme Court had evoked the history of the Sixth Amendment in its decisions (Apprendi, Blakely) requiring juries to find the facts used in sentencing.

If the right is not just the defendant's, we have to wonder how the defendant can waive a jury trial. We take bench trials and plea bargains for granted now, but I was surprised to read that some state supreme courts held that guilty verdicts were unconstitutional because they removed the community's right to decide guilt and punishment. Id. at 49.

Graphic: John Adams (one of the authorities quoted in Appleman's article), from White House Kids.

Michael Atkins at Seattle Trademark Lawyer reports that Judge Coughenour isn't accepting trademark cases when they're assigned to him. Since he's on senior status, he can have more control over his docket apparently. Judge Coughenour Not Accepting New Trademark Cases, Jan. 17, 2008.

I just listened to a podcast interview with two of the authors of The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines, published by the ABA.

Asked what sets this book apart from other books on e-discovery, Sharon Nelson said: forms. She quoted a friend as saying that all lawyers want two things: forms and a continuance. This book has 60 forms (and a CD-ROM to make them easy to work with).

For more about the book, see the publisher's description (the publisher is the ABA) or take a look at it in the library (KF8947 .N45 2006 at Classified Stacks).

Saturday, January 19, 2008

How should judges deal with scientific evidence? Prof. Edward K. Cheng says that one way to improve decisionmaking is for them to do library (or online) research themselves. Judges are divided on the question. In a survey Cheng conducted, some said that outside research was highly desirable and others said it was highly undesirable.

This Article has argued that independent research is both desirable and permissible. Indeed, independent research carries great promise as a tool for helping judges decide Daubert questions and for improving scientific decisionmaking in the courts generally. Furthermore, although ultimately ambiguous, current rules seem to allow sufficient leeway to permit the practice. But ultimately, whether one agrees with its position or not, this Article’s true purpose is a broader one, and that is to spark greater academic and judicial commentary on the issue of independent research and the various ways to help judges make scientific admissibility decisions.

It used to be common for states to exempt professionals -- doctors, lawyers, clergy, enineers -- from jury service. Now it is common to have them on juries. It's perceived as fair in some ways: everyone has to serve, and juries are more representative. But there's a risk that a professional will sway fellow jurors during deliberations, bringing in outside knowledge -- in effect, giving testimony that is not susceptible to cross-examination or refutation during argument.

He proposes increased challenges for cause -- e.g., if an engineer is in the jury pool for a case involving bridge construction. But, once a professional is on the jury, he proposes that they not be given special instructions not to use their expertise. Restrictive instructions unduly interfere with the deliberative process, he says.

A bill (HB 2945) was introduced yesterday that would provide a private cause of action for the wrongful death or injury of a companion animal. It would add companion animals to RCW 4.24.320, which provides a cause of action (with treble damages) for injuries to livestock.

Wednesday, January 16, 2008

Some big businesses have lifted photos from Flickr and blogs to use in their advertising. And some of the photographers and their subjects are not flattered -- in fact, some have sued. Search Help! I've been photonapped by Big Business!, Seattle Times, Jan. 16, 2008 (story from Wash. Post).

Faced with the prospect of going to trial today with little evidence and without the cooperation of the alleged victim, King County prosecutors on Tuesday dropped the domestic-violence case against Seattle City Councilmember Richard McIver.

Here's the basic model: a company seems to have engaged in shady practices. The U.S. Attorney's office investigates. At some point, instead of further investigation leading to a possible indictment, the prosecutors work out a deal with the company that the company will pay a a consultant (chosen by the prosecutors) to come inside the company and shake things up.

The lucrative arrangements are known as "monitorships," unusual contracts in which an outsider comes into a troubled company with vast power to expose corruption and change business practices. The deals allow scandal-plagued companies to avoid criminal charges -- and they give prosecutors a way to ensure businesses keep their promises and clean up abuses. But legal experts and lawmakers are expressing growing concern about inconsistency and secrecy surrounding the appointments.

The monitors hired -- with big pricetags -- are often former government officials (e.g., former Attorney General John Ashcroft), and there's no competitive bidding process.

Court Upholds NY Judicial Elections, Wash. Post, Jan. 16, 2008. New York voters elect delegates to a party convention. The delegates select judicial candidates. Unsuccessful candidates and a watchdog group challenged the system. "The plaintiffs have said the current system leads to cozy relationships among judges, lawyers and politicians." The district court and the Second Circuit found it unconstitutional. The Supreme Court today reversed.

The case is New York Board of Elections v. Torres, 06-766, supremecourtus.gov. The opinion was by Scalia. There were no dissents (although there were a couple of concurrences).

Tuesday, January 15, 2008

The standard line is that most judges are generalists, handling any legal dispute that comes before them. Prof. Edward K. Cheng has tested that proposition by examining 10 years of decisions from the U.S. Courts of Appeals. Although panels are assigned randomly, it turns out that some judges tend to write more than their share of opinions in given areas. For example, if Judge A is in the majority in 30 unanimous 3-judge employment discrimination cases, you might expect A to write 10 of the opinions, but in practice A might have written 20.

Is this a bad thing or a good thing? Prof. Cheng discusses possible implications. One obvious positive: greater expertise by the opinion writer might make for better opinions, prepared more efficiently. One possible negative: other judges might defer too much to the judge who seems to be expert and there might be some bias. To take one example, there are a number of judges who get assigned to more than their share of criminal law cases -- often judges who were prosecutors before being appointed to the bench. (Defense attorneys are much less often appointed.) Would former prosecutors have a bias toward the government position?

Sunday, January 13, 2008

It's been nearly four years since a board flew off a rented trailer on Interstate 405, smashed through the windshield of [Maria] Federici's Jeep and sheared off much of her face.

Since then, Federici has undergone seven reconstructive surgeries, had a state law making it a crime not to secure loads named in her honor and won a $15.5 million court judgment against U-Haul and the man who failed to tie down the load that struck her car.

She has yet to receive any money because U-Haul has appealed November's jury verdict. But her lawyers expect she will eventually receive enough money to pay her living expenses and medical bills for the rest of her life.

Thursday, January 10, 2008

This morning's Seattle Times has a front-page story about pressure from booters to dismiss UW football coach Ty Willingham and athletic director Todd Turner. There was also some significant support. The story quotes from various email messages the newspaper got from the UW using a public records request.

One booster ("Ed Hansen — lawyer, multimillionaire, University of Washington alumnus and former three-term Everett mayor") pledged "100,000 towards a law school scholarship" conditioned on Willingham's termination and "a second $100,000" conditioned on Turner's termination. The UW decided to retain Willingham, but Turner is leaving at the end of this month. (President Emmert says he doesn't remember seeing the message. He also says he doesn't pay attention to financial threats or inducements tied to personnel decisions.)

Asked about his e-mail to Emmert, Hansen said he never expected it to become public. He said he offered the money because he wanted to help law students and get the football team back to winning.

Hansen said he believed there was nothing inappropriate about his e-mail: "If someone is willing to make a gift of money for a charitable purpose, they are entitled to put conditions on it. The UW is free to do what it will do, and Ed Hansen is free to make contributions to the UW if he likes the direction things are going."

Asked if he planned to donate $100,000 now that Turner has resigned, Hansen said he'd never considered the possibility that Willingham would stay and Turner be gone. "Your call is making me evaluate that," Hansen told a reporter. Later, Hansen said, "I think, as you and I are talking, I will go ahead with the $100,000 I mentioned."

The California Supreme Court has been seen as an influential court, both in studies and anecdotally. The authors sought to explore that claim, updating and refining the earlier studies. (Mr. Dear is the Chief Supervising Attorney for the California Supreme Court and Mr. Jessen is the Reporter of Decisions.)

With the help of LexisNexis (the owner of Shepard's Citations), they developed a database of cases that had not only been cited by other state courts but followed. Not surprisingly, California was consistently at the top of the list -- most cases that have been followed at least once, most cases that have been followed at least 3 times, most cases followed since 1986, etc.

A new result was that the Washington State Supreme Court was consistently in the number two slot. Older studies had placed New York, New Jersey, or other states higher, but with this data it was Washington. See note 87 of the article for a list of the six Washington cases that have been followed six times or more.

The authors say that the various state supreme courts typically have around the same number of full opinions. A difference, though, is the pool.

California’s highest court certainly has a large and rich inventory of cases from which to select — the court considers approximately 5400 petitions for review and 3000 requests for original writs annually....

The U.S. Attorney for Western Washington is conducting a criminal investigation of the Port of Seattle based on a state performance audit of the port's construction management, which found the port wasted $97.2 million during contracts active from 2004 to 2007.

In a letter sent Friday to Washington state Auditor Brian Sonntag, U.S. Attorney Jeffrey Sullivan asked the auditor not disclose the identities of the people who were interviewed for at least three months because such disclosure "may well impede our criminal investigation."

Two people charged with killing six members of a family in rural Carnation on Christmas Eve made their first formal court appearance Tuesday as attorneys argued over whether they should wear jail uniforms and shackles in court.

Judge Cheryl Carey granted the defendants' request that they be allowed to wear street clothes (and denied the jail's request that they be kept shackled and in jail clothes to deter escape). The judge said that press could photograph the defendants, but only once they're in street clothes.

John Trasviña, President and General Counsel of the Mexican-American Legal Defense & Educational Fund, will speak on The Rollback of The Civil Rights Era in America as part of the Gates Public Service Speaker Series.

Panel members will be asked to discuss various U.S. Supreme Court decisions (and policy implications of these decisions) that have served to roll back the civil rights of people of color across the country in the areas of workers rights and access to education. There will also be a discussion regarding the wave of passage of anti-immigrant laws across the country through state legislatures and city ordinances

Lawyers will look at how to use the presence or absence of documentation, communand the plus factor as well as witness credibility. Your documentation, communication, and service are your evidence that can support your care but also prevent attorneys from taking on cases with bad outcomes. It is time for medical practices to significantly change their liability equation, and fortunately they can [by adopting the strategies discussed in this article]. In addition, these strategies are also good for patient care.

For years, people were called to jury service int he county and assigned to either the Regional Justice Center in Kent or the King County Courthouse in downtown Seattle randomly. That made for big transportation hassles for jurors who had to cross the county. This fall the courts tried out a new system, sending jurors from south of I-90 to the RJC and jurors from north of I-90 downtown. A couple of judges upheld the system over challenges, but this week Superior Court Judge Cheryl Carey, "in a strongly worded opinion," said the system violates the state constitution's requirement that guarantees trial by "an impartial jury of the county in which the offense is charged to have been committed." Jury verdicts in question, Seattle Times, Jan. 6, 2008.