Tuesday, March 15, 2011
The South Carolina Supreme Court reversed a murder conviction, concluding that the prosecutor had "goaded" defense counsel into seeking a mistrial and then securing the conviction at a second trial. The court concluded that the second trial was barred by double jeopardy.
The court recited the facts:
It is undisputed that Petitioner shot and killed his sister's boyfriend, Robert Lee Stewart (Victim). In October 2003, Petitioner stood trial for murder. At trial, Petitioner claimed self-defense. The first trial ended when the judge granted Petitioner's motion for a mistrial. When Petitioner was tried again in 2005, he moved to dismiss based on double jeopardy. The circuit court judge at the second trial denied the motion and the jury convicted Petitioner of murder.
During the first trial, there was a great deal of animosity between the solicitor and defense counsel. Prior to questioning the first police witness, the solicitor explained that there was a videotape made of the crime scene that included graphic images of Victim's body. The solicitor redacted the original videotape to erase the graphic images and presented defense counsel a redacted copy on the day of trial. However, the original videotape, including the graphic images of Victim's body, was shown to the jury. Petitioner's counsel moved for a mistrial and dismissal with prejudice based on prosecutorial misconduct. Counsel for defense argued the solicitor's case was not going well and the State was now privy to his defense tactics. The solicitor claimed the tapes were switched unintentionally and inadvertently. The court found the explanation offered by the State "shocking" as to why "such a huge, substantial, material piece of evidence would be handled in such carefree fashion . . . ." The circuit court judge admonished the solicitor, but denied the motion for a mistrial issuing a curative instruction that the jury was to disregard the fact that they viewed the body of Victim.
During the solicitor's closing argument, she accused defense counsel of unethical conduct in coaching witnesses and implied to the jury that it was their community duty to convict Petitioner of murder. After the solicitor concluded her closing argument, defense counsel again made a motion for a mistrial. Defense counsel contended a mistrial should be granted based on prosecutorial misconduct in closing argument in that the prosecution accused defense counsel of coaching witnesses, and argued facts not in evidence. Defense counsel ultimately argued that the cumulative effect of the prosecutorial misconduct warranted a mistrial. The circuit court judge charged the jury and then heard arguments on the mistrial motion. The solicitor contended her closing argument was justified by the evidence and was responsive to the defense's closing argument, thus, the mistrial motion should be denied. The jury then sent a note to the judge that it was deadlocked. The judge gave an Allen charge and the jury resumed deliberating. After further deliberation, the jury again reported that it was deadlocked. The judge received the note that the jury remained deadlocked as he was about to rule on the mistrial motion.
The circuit court judge noted he had reviewed the motion for a mistrial, the solicitor's closing argument, and his notes from the testimony. The judge found the statements made about Petitioner's counsel, the exhortation to the jury to convict in order to protect the community, and the introduction of the original videotape warranted a mistrial.
The circuit court judge stated, "In my readings of those opinions it's almost as if . . . this court can infer that the defendant was almost goaded into the position of asking for a mistrial. So based on the totality of the circumstances that [have] occurred in this trial . . . I will declare a mistrial . . . ." The solicitor asked if the mistrial was based specifically on prosecutorial misconduct or the comments in her closing argument. The judge responded, "The comments made in closing arguments, I would consider to be prosecutorial misconduct as well as . . . the video tape. . . . It's the cumulative nature of everything." The State appealed the grant of a mistrial and the court of appeals dismissed the case as not immediately appealable.
Almost two years later, the State retried Petitioner. Petitioner moved to dismiss based on double jeopardy arguing the solicitor at the first trial intentionally goaded him into moving for a mistrial. The circuit court judge at the second trial denied the motion to dismiss. In denying the motion to dismiss that judge made two seemingly inconsistent findings. That judge stated:
I am resolving this motion completely independent of whether or not the prosecutor intentionally goated [sic] the defense into making a motion for a mistrial. . . .
. . . . Even if there had been prosecutorial misconduct, it was the fact that the jury was deadlocked that caused the mistrial.
. . . . So regardless of my analysis of what happened in the first trial, this motion to dismiss is denied because it was the jury's being deadlocked that lead to the manifest necessity that lead [sic] to the mistrial.
Shortly after making the above finding, the circuit court judge also found the following:
I do not find that the prosecutor specifically committed misconduct that was designed to elicit a motion for mistrial from Defendant so that the prosecutor would have another bite at the apple, another time to try the Defendant. I believe that the prosecutor was vigorously trying to win the case and not trying to throw the case in the way of a mistrial. So I am for those reasons, denying the motions [sic] to dismiss based on double jeopardy.
The second trial proceeded and the jury convicted Petitioner of murder. Petitioner appealed to the court of appeals. The court of appeals affirmed the denial of Petitioner's motion to dismiss based on double jeopardy.
The court found that the finding that the prosecutor had not goaded the defense was clearly erroneous.
Details about the decision from FoxCarolina may be found here. (Mike Frisch)
Friday, February 18, 2011
The Iowa Supreme Court agreed with its Court of Appeals that a trial court committed error when it permitted the plaintiff in a legal malpractice case to introduce evidence that the attorney "emitted the smell of an alcoholic beverage from his breath during the representation, without introducing evidence of impairment."
The court remanded the case for a new trial as a result of errors in the jury instructions.
The opinion of the Court of Appeals is linked here.
The attorney had defended the clients in civil litigation that led to a money judgment against them. He entered a substance abuse treatment facility shortly after the trial. The trial court refused to admit opinion evidence on whether the attorney was intoxicated at the trial and excluded evidence of his post-trial treatment for alcoholism. The Court of Appeals concluded that "there was no evidence [the attorney] was 'under the influence' much less that he was incapable of competently performing his services as a result." (Mike Frisch)
Monday, February 14, 2011
Posted by Jeff Lipshaw
For those of you out in the practice world who are curious about how academic legal theory and first year contract law pedagogy might be combined with real world intuitions and experience, I've posted a new article, Metaphors, Models, and Meaning in Contract Law , on SSRN.
The gist of it is this: the dominant metaphor for contract in practice and the academy is "contract as model." One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact. Sometimes the metaphor is appropriate, and sometimes it is not. I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction . I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself. The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.
February 14, 2011 in Abstracts Highlights - Academic Articles on the Legal Profession, Law & Business, Law & Society, Lipshaw, Teaching & Curriculum, The Practice | Permalink | Comments (0) | TrackBack (0)
Thursday, February 10, 2011
The Florida Supreme Court resolved a conflict in lower court decisions by holding that a "safe harbor" provision enacted in 2002 did not apply to frivolous claims filed prior to the adoption of the provision. Under the provision, a party seeking sanctions must serve the motion on the opposing party twenty-one days before filing it with the court. (Mike Frisch)
Thursday, February 3, 2011
The Maryland Court of Special Appeals affirmed a criminal conviction nothwithstanding the prosecutor's improper statements to the jury in closing rebuttal argument. The prosecutor asked the jury why the defendant would "want a trial if he's already signed a confession." Then:
Guilty people have a right to trial. That's what we had today.
The court here found that the remarks were an isolated instance, that the trial court instructed the jury that arguments were not evidence, and there was overwhelming evidence of guilt. (Mike Frisch)
Saturday, January 8, 2011
A recent opinion of the District of Columbia Bar Legal Ethics Committee deals with obligations to maintain client files. The opinion summary:
As a general matter, there is no ethical prohibition against maintaining client records solely in electronic form, although there are some restrictions as to particular types of documents. Lawyers and clients may enter into reasonable agreements addressing how the client’s files will be maintained, how copies will be provided to the client if requested, and who will bear what costs associated with providing the files in a particular form; entering into such agreements is prudent and can help avoid misunderstandings. Assuming no such agreement was entered into prior to the termination of the relationship, however, a lawyer must comply with a reasonable request to convert electronic records to paper form. In most circumstances, a former client should bear the cost of converting to paper form any records that were properly maintained in electronic form. However, the lawyer may be required to bear the cost if (1) neither the former client nor substitute counsel (if any) can access the electronic records without undue cost or burden; and (2) the former client’s need for the records in paper form outweighs the burden on the lawyer of furnishing paper copies. Whether (1) a request for electronic files to be converted to paper form is reasonable and (2) the former client’s need for the files in paper form outweighs the lawyer’s burden of providing them (such that the lawyer should bear the cost) should be considered both from the standpoint of a reasonable client and a reasonable lawyer and should take into account the technological sophistication and resources of the former client.
Thursday, December 30, 2010
Posted by Jeff Lipshaw
The "Small Business" section of the New York Times has an article this morning about models small and entrepreneurial businesses are using to hire law firms, and strategies the firms are using to serve them. I'm not sure there's anything really new in here, but it does bring up a point that legal educators and young lawyers need to appreciate, particularly for those law grads who aren't headed to the traditional big law associate posting. Lawyers to small businesses are often the first and only outside adviser the firm has ever had. Listen to some of these snippets: "Make sure the attorneys understand your business - who your customers are, what your biggest areas of risk are, and so on." "One issue is a traditional distrust of lawyers shared by many entrepreneurs: 'They see the lawyer as saying no to daring business moves." "I needed access to a trusted source and only to pay for it when I use it, like weekends and so forth. I use my attorney also to brainstorm ideas."
This is consistent with my view that business lawyers (or at least effective or successful one) can't simply give clients the law and expect them to make the integrated business/legal decision. For more on this from a theoretical standpoint (with practical examples), see The Venn Diagram of Business Lawyering Judgments: Toward a Theory of Practical Metadisciplinarity, 46 Seton Hall L. Rev. 1 (2011).
Friday, December 17, 2010
The web page of the Ohio Supreme Court reports:
The New Year will result in some significant changes for out-of-state attorneys who want to appear temporarily in a proceeding in Ohio (pro hac vice).
The Supreme Court of Ohio adopted pro hac vice amendments last year, which become effective Jan. 1, 2011. Pro hac vice is a privilege granted by a tribunal to out-of-state attorneys not admitted to practice law in Ohio to appear before the tribunal on a limited basis.
Amendments to Gov. Bar R. XII of the Rules for the Government of the Bar will:
- Centralize the administration of pro hac vice admission through the Supreme Court’s Office of Attorney Services.
- Require an out-of-state attorney to file an application and $100 annual registration fee before applying to appear pro hac vice.
- Establish basic criteria for appearing pro hac vice before a tribunal, including acknowledgement of Ohio’s attorney disciplinary rules and a statement that the attorney has not been granted permission to appear pro hac vice in more than three proceedings before Ohio tribunals in the current calendar year.
- Permit the administrative revocation of privileges to practice pro hac vice if the attorney does not comply with certain provisions of the rule.
Susan Christoff, Attorney Services Division director, said the changes implemented in Ohio bring the state in line with how other states have handled temporary appearances by out-of-state attorneys.
“Attorneys who regularly practice in other states in the Midwest should be familiar with some of the requirements instituted by Ohio because they are similar to what those other states require,” she said. “That being said, it’s important to note that pro hac vice has changed in Ohio, and we want to make sure Ohio’s courts and administrative agencies as well as Ohio judges and attorneys are aware of these coming changes.”
She noted that attorneys seeking pro hac vice registration will be able to submit registration applications electronically. The Office of Attorney Services will maintain an online public directory that includes the names of attorneys who have registered under the new rule and the cases in which they have received permission to appear pro hac vice.
To access more detailed information on the changes, complete the pro hac vice registration process online or access the pro hac vice attorney directory, click on the pro hac vice button on the front of the Supreme Court’s Web site at www.sc.ohio.gov or visit this Web address: http://www.supremecourt.ohio.gov/AttySvcs/PHV/default.asp.
Thursday, December 16, 2010
In an accident case involving an injured motorcyclist, the defendant City of Tampa made a number of objections at trial concerning the behavior of the plaintiff's attorney. The objections were sustained. After a verdict for the plaintiff, the City sought a new trial based on the improper conduct of counsel.
The Florida Supreme Court held that the City was required to move for a mistrial in order to preserve the appeal for a new trial. The City's failure to timely move for a mistrial precludes consideration of the issue.
The court resolved a district court split over the issue. (Mike Frisch)
Saturday, November 27, 2010
Over at Minor Wisdom, Ray Ward is starting to share his view from the jury voir dire. More thoughts to come, but the money quote so far is that "while lawyers should not be immune from jury duty, we really should get CLE credit for it." Also, his blog reminded me of his excellent and serious post five years ago at JD Underground on lawyers and depression, Depression, The Lawyers' Epidemic: How You Can Recognize the Signs. [Alan Childress]
Monday, October 4, 2010
The web page of the Pennsylvania disciplinary board reports:
On August 17, 2010, the Supreme Court of Pennsylvania decided a high-profile case involving an attempt by a pharmaceutical company to disqualify the private law firm hired by the Commonwealth to pursue a claim for damages for Medicaid and other program funds spent as a result of off-label marketing efforts by the company.
In the case of Commonwealth v. Janssen Pharmaceutica, Inc., No. 24 EAP 2009, the company had sought to disqualify the Texas law firm of Perrin Bailey, LLP, which represents several states in similar litigation. The company attacked the contingent fee contract between the firm and the Office of General Counsel on several theories, including:
- it restricted the ability of the state to enter into a nonmonetary settlement;
- it was an improper delegation of spending authority;
- it infringed on the General Assembly’s exclusive spending power; and,
- it violated the company’s due process rights by giving a party acting on behalf of the government a financial interest in the outcome.
In the majority opinion, written by Chief Justice Castille, the Court did not reach these issues. Rather, it decided the case under the terms of Section 103 of the Attorneys Act, 71 P.S. 732-103, which states that no party other than a Commonwealth agency has standing to challenge the authority of the legal representation of the agency. The Court described Janssen’s statutory and constitutional arguments as “cogent,” but concluded that the intent of the Legislature to deny private parties the right to challenge the representation of the Commonwealth was clear.
In a concurring opinion Justice Baer, joined by Justice McCaffery, agreed with the majority’s reasoning, but expressed concern about whether the issue might be moot.
Justice Saylor filed a dissent in which he expressed the view that the constitutional issues raised by Janssen were not subject to limitation by Section 103, and that its efforts to disqualify the firm should be determined by traditional standing analysis.
Wednesday, September 8, 2010
The New York Appellate Division for the First Judicial Department reinstated a dismissed action brought by an employee who was represented in an immigration matter by an attorney retained by the employer. The court found that there were issues that could not be resolved on motion:
...even if it could be said that defendant, despite the lack of an expert, sustained his prima facie burden simply by pointing to plaintiff's failure to maintain a valid passport, plaintiff raised an issue of fact sufficient to defeat the motion. Plaintiff's expert opined in his affidavit that in his experience, the failure to maintain a valid passport has never resulted in a person's loss of legal immigration status. Defendant failed to rebut this. Therefore, a trial is necessary to determine whether plaintiff's actions excuse defendant from liability.
Not even defendant makes the argument, advanced by the dissent, that even assuming plaintiff was illegally benched and had a valid passport, it still would have been proper for defendant to petition for a renewal of the visa. In any event, the argument is meritless. First, the dissent places the burden on plaintiff to explain what he was doing during the 16 months he was not working for WFI [the employer] , when it was defendant's burden to negate the allegation in the complaint that plaintiff was illegally benched. The dissent fails to address the fact that defendant presented not one whit of admissible evidence that plaintiff voluntarily separated himself from WFI.
Furthermore, the dissent's view would permit an unlawful and vindictive act by an employer to work to the detriment of an innocent alien. We find it improbable that defendant would have lacked any ability to present these unique facts to immigration authorities and explain the extraordinary prejudice that would befall plaintiff were he forced to make a trip to a war-torn country to validate a renewed visa that could have simply been extended had his employer not acted in a manner contrary to law. Even if the regulations were so inflexible, as the dissent believes, it would have been necessary for defendant to support his position with expert testimony explaining why even under such extreme circumstances his hands were tied. Indeed, as discussed above, the immigration regulations at issue here, including the section requiring a valid passport at the time an application for extension is filed, are hardly self-explanatory, nor is it possible to conclude from their face that defendant had no chance of successfully securing an extension of plaintiff's visa. Accordingly, we reject the dissent's position that Supreme Court was "able to assess the adequacy of the legal services rendered, and require[d] no expert guidance."
The dissent notes that the employer had rehired the employee after the events that were the basis of the case:
The failure of proof on the dismissal motion lies not with defendant, but with plaintiff. Significantly, the reason for plaintiff's "separation" from his employment — whether benching, as plaintiff now maintains, or abandonment of his job, as WFI records indicate — presents a question of fact. Plaintiff has submitted no affidavit in opposition to the motion explaining why he left WFI or what he was doing during the ensuing 16 months; nothing in the record provides an explanation, including the Kuck affidavit, which — as the affidavit of an attorney unaccompanied by documentary evidence — is without probative value (Zuckerman v City of New York, 49 NY2d 557, 563 ). In the absence of a submission, in admissible form, attesting that plaintiff at all times met the conditions of his H1-B visa, the opposition fails to allege that but for defendant's malpractice, plaintiff could have received a visa extension (see Yong Wong Park v Wolff & Samson, P.C., 56 AD3d 351 , lv denied 12 NY3d 704 ). The expert's submission is thus procedurally deficient, warranting dismissal of the complaint on that basis alone (see Alvarez v Prospect Hosp., 68 NY2d 320, 327 ), since plaintiff has failed to provide a viable theory of malpractice by defendant supported by the requisite factual predicate.
Plaintiff's opposition evades discussion of the circumstances under which he left WFI and what he was doing during the 16 months before he was rehired, and fails to address such matters as whether he took alternative employment to support his family (a wife and a child born in February 1999) during this period. The opposition to the motion only suggests, by indirection, that there was some misconduct on the part of WFI in connection with plaintiff's separation from his employment with the company, but neglects to supply any information to support that intimation or to connect it to the conduct alleged to constitute malpractice. Finally, plaintiff coyly offers only the affidavit of his purported expert in immigration law, in lieu of a sound legal argument supporting his cause of action.
Thursday, August 26, 2010
The web page of the Ohio Supreme Court reports:
The Supreme Court of Ohio’s Board of Commissioners on Grievances & Discipline has issued an advisory opinion addressing two questions that arise from the State Public Defender having a central office and branch offices.
Opinion 2010-5 addresses whether assistant state public defenders located in different offices are considered lawyers associated in a firm for purposes of imputation of conflicts of interest. The opinion also addresses whether there’s a conflict of interest when an assistant state public defender in the central appellate office conducts a merit review, prosecutes an appeal, or pursues a post-conviction remedy asserting ineffectiveness of an assistant state public defender from a branch office.
The opinion finds that assistant state public defenders in different offices are not automatically considered lawyers associated in a firm for purposes of imputing conflicts of interest. The association hinges on whether the appellate state public defender provides assistance to a trial branch state public defender in a trial matter.
The opinion also finds that there is not a per se conflict of interest between assistant state public defenders in different offices. A conflict depends “upon whether there is a substantial risk that the appellate lawyer’s ability to consider, recommend, or carry out an appropriate course of action for the defendant is limited by the appellate lawyer’s responsibilities to another client, a former client, or a third person, or by the lawyer’s own person interests.”
Several portions of two Ohio Rules of Professional Conduct were consulted in issuing this advisory opinion, including: Prof. Cond. Rules 1.10 and 1.7.
Friday, August 13, 2010
Posted by Jeff Lipshaw
Over the course of a career, I've mentored enough people to be proud when they achieve good things after we've parted company, but I haven't been teaching long enough to get a lot of that yet from my law students.
One of my students (and my research assistant) at Tulane in 2006-07, Matthew Kirkham, is an assistant DA in Orleans Parish (New Orleans), Louisiana. This story is about the successful prosecution of a guy who stole $500,000 by not providing contractor services to Katrina victims. As reported, "Assistant District Attorneys Alex Calenda and Matt Kirkham handled the case."
* Per Merriam-Webster, "Yiddish kveln to be delighted, from Middle High German quellen to well, gush, swell."
Thursday, July 22, 2010
Posted by Alan Childress
Lisa Webley is a Reader at the law school of Westminster and a research fellow at the University of London Institute of Advanced Legal Studies (where she also got her PhD); she was just now at Stanford attending the international conference on the legal profession (and I will try to horse-and-hound her into blogging on it). She has published her law-and-society dissertation on the different approaches solicitors versus mediators take toward divorce and custody matters. Their practical and conceptual styles are indeed different, as revealed
by the grounded theory study of their ideologies, training, backgrounds,
ethics, and professional messages. So finds Lisa in Adversarialism and Consensus? The Professions’ Construction of Solicitor and Family Mediator Identity and Role. Her abstract:
This study considers the messages that the Law Society of England and Wales and the UK College of Family Mediators transmit to their members about the professional approach they should adopt in divorce matters. The study employs a grounded theory method to analyse the training, accreditation, best practice statements and codes of conduct generated by the two professional bodies. It examines the extent to which the training, accreditation and codes of conduct of family solicitors and family mediators privilege adversarial or consensus based approaches to divorce for their clients, in the light of statements made around the time of the passage of the Family Law Bill, which suggested a dichotomy in professional approach by these two professional groups. It considers further the nature of professional identity for each of the professional groupings, as constructed through the messages delivered by the professional bodies.
I finally tout a book on-topic to this blog! I helped Lisa publish this as part of the new Dissertation Series of ebooks which I wrote about in Publish Your Dissertation as a Digital Book. Comparative LP expert John Flood (Westminster; U of Miami Law) read that post and commented, and then told Lisa about the series (thanks John!), and she and I worked hard to get this out fast (the tables were a coding nightmare). It is available on Amazon for Kindle and its free apps (and so iPad and BlackBerrys too); on Smashwords in nine different formats (even just PDF, though a pretty one with links, and view online); is featured on the Quid Pro website; and will soon be on Apple iTunes, Barnes & Noble for Nook, and Sony ebookstore.
Monday, July 12, 2010
Posted by Jeff Lipshaw
I drove up I-75 from the Detroit area to Charlevoix yesterday, and was listening to the baseball game somewhere near Flint (WTRX, 1330-AM, part of the Detroit Tigers Baseball Network*) and heard an ad that I have to admit caught my attention. I've debated whether I really wanted to give this lawyer the free advertising that this post would entail, but what the heck. I leave to Mike and Alan to tell me technically whether there's a professional responsibility issue here; I can't decide if the lawyer is doing a public service or not.
It was a pretty standard divorce lawyer's radio ad ("When Matrimony Turns to Acrimony"), but what caught my attention was that the URL for the website was "dumpmyspouse.com." It went by quickly, so at first I thought that was the URL for a law firm, and that seemed pretty squirrelly to me. Would you really be doing a service to your clients by sending out communications to the courts, lawyers, and the public with your e-mail as "email@example.com?" (I should add, by the way, that I looked at this particular lawyer's online resume, and he seems to be a fully qualified, upstanding guy.)
I was wrong, however, about the website. "Dump My Spouse" is not a law firm, or a law firm's URL. It is a private referral service, obviously originated by this particular Flint lawyer. It has a map of the state of Michigan with all 83 counties outlined, and you are supposed to click on a county to find a lawyer who is part of the "Dump My Spouse" referral network. You can register to be part of the network. I wasn't going to click through all 83 counties, but I clicked on a random sample and, as far as I can tell, this Flint lawyer is still the only member of the network, which may answer the question posed in the preceding paragraph.
De gustibus non est disputandum.
* When I'm in Michigan, I get to watch my beloved Tigers to my heart's content on Fox Sports Detroit, but this pleasure has been sullied somewhat by the fact that 1-800-CALLSAM, the quintessential wee hours cheap advertising personal injury law firm of my professional youth in the Detroit area, has obviously prospered to the point that it is now the major sponsor of the ballgames, including the CALLSAM Post-Game Report. I think it even has one of the advertising spots right behind home plate, so that you get to watch Justin Verlander aim his slider at the right side of the M in alternate innings. By the way, just to make it clear that I'm an equal opportunity curmudgeon on this issue, I would get almost as disgusted (note the Latin root by the way) when I'd be listening to "All Things Considered" on NPR, and find out that it was underwritten in part by Silk & Stocking, the biggest law firm in town, and one to whom I was sending thousands of dollars of our legal business, with some goony slogan like "It's an Uncertain World: Be Advised" or "We Know the Territory."
Thursday, July 8, 2010
The Legal Ethics Committee of the District of Columbia Bar has issued an opinion explaining the proper handling of flat fees. the opinion considers the impact of a recent opinion of the D.C. Court of Appeals on the subject. The summary:
In its decision in In re Mance, 980 A.2d 1196 (D.C. 2009), the District of Columbia Court of Appeals held that, absent informed consent from the client to a different arrangement, a lawyer must deposit a flat or fixed fee paid in advance of legal services in the lawyer’s trust account. Under Mance, such funds must remain in the lawyer’s trust account until earned unless the client gives informed consent to a different arrangement. This Opinion provides guidance for the Bar concerning these rulings.
The lawyer and client may agree on how and when the attorney is deemed to have earned some, or all, of the flat fee and thereby entitled to transfer trust funds into the lawyer’s operating account. Such an agreement must bear a reasonable relationship to the anticipated course of the representation and must avoid excessive “front–loading.” A written agreement or a writing evidencing the agreement is strongly recommended but not mandatory. In the absence of any agreement with the client regarding milestones by which the lawyer will have earned portions of the fixed fee, the lawyer will have the burden to establish that whatever funds that have been transferred to the lawyer’s operating account have been earned.
Alternatively, a lawyer may place unearned funds in an operating account provided that the lawyer obtains informed consent from the client as provided in Rule 1.15(e). In order to obtain such consent, the lawyer must explain to the client that the funds may also be placed and kept in a trust account until earned and that placement in an operating account does not affect a lawyer’s obligation to refund unearned funds if the client terminates the representation. The lawyer should also explain the additional protection offered by a trust account. For the lawyer’s and client’s protection, these disclosures should be in writing, but the Rules do not mandate a writing.
The Mance opinion is linked here. (Mike Frisch)
Saturday, June 19, 2010
Posted by Jeff Lipshaw
The always insightful and interesting Howard Wasserman (FIU, left) provoked a discussion over at PrawfsBlawg on "student centered" teaching that, in the comment thread, turned into that ancient debate about all those theorist law professors at odds with their practical minded students. I posted a comment, responding to "Vladimir" and "BL1Y", that I thought was worth re-posting here. I think, as a long time practitioner AND law professor (me) interested in highfalutin' theory (that is, given my odd background, I think I could teach a jurisprudence class, a trial skills class, and a transactional skills class), I have some credibility on both sides of the issue.
How the legal academy came to its present configuration wasn't the result of some logical exercise, but a matter of historical happenstance. That's not uncommon. Most intractable social and political realities arise that way (see Northern Ireland or Israel-Palestine). The reality now is that you are both correct in your fundamental observations: there IS a gap between what most law students want (unless they go to Yale) out of their educations, and what most law professors want out of their careers. It may well be that something like the financial crisis of the last couple years, and the shrinking of big law firms engenders a complete restructuring of the legal academy into a Ph.D. like "department of jurisprudential studies" with its place in the College of Arts and Sciences, and more trade school like professional schools, but I doubt it for two reasons that undercut both polar positions.
1. Law professors can't merely be theorists and have their gravy train survive. What allows so many law professors to engage in theory is the fact that their students who have little such interest fund the theoretical pursuit. First, law schools are notorious cash cows. When is the last time you heard of anyone organized a proprietary or for-profit sociology department? The cost of providing the education, unlike in the hard sciences or med schools, is relatively low compared to the market price of the tuition. Second, it's the salaries in private law firms that by and large set the benchmark for law professor salaries. Even if you take a pay cut to move into academia from the big law firm that is the typical immediate pre-professor job, you aren't getting paid like an assistant professor in the English department.
2. Law students don't REALLY want to be trained in the legal equivalent of the barber college or truck driver school. While law students may get frustrated with the theory often foisted upon them by their professors, the present paradigm in the academy (and, honestly, this preceded the influence of US News, because the elite schools in US News were the elite schools when Bob Morse was still wearing short pants), they show over and over again that they are significantly influenced by the brand of the law school, regardless of the specifics of the pedagogical program. And the brand, as the institution of the legal academy has developed, has a lot to do with all that theoretical stuff law professors are churning into law review articles. I'm not arguing that is good or bad (although I wouldn't be a law professor just to teach; it's the theory that floats my boat after all those years of practice); it's just the reality. Seriously, tell me that a rational student, faced with the choice of Stanford or UCLA, with all those practice-challenged theorists, or an excellent "skills-focused" third or fourth tier school, and no significant difference in tuition (see point 1) (and maybe not even then, but that's an interesting econometric question), wouldn't choose Stanford or UCLA?
My "dean speech" (that nobody has asked me to give) is that this is an intractable polarity that the profession is simply going to have to manage by way of leadership that provokes empathetic perspective at both poles. The poles aren't coherent, and there is no rule of nature that says they have to exist, much less coexist. But they can, just like lots of polarities, continue to coexist. Faculties simply have to make concessions to the concerns and needs of students or their gravy train is going to disappear; students and alumni are going to have to acknowledge the driving forces of academic prestige and advancement, or they are going to lose that patina (and brand, and earning power) that comes with a law degree other than from ITT Tech, DeVry (which owns a med school on the island of Dominica, "a lush, classically Caribbean environment"), or the University of Phoenix, all of which would be perfectly capable of offering what BL1Y wants (InfiLaw already does).
Wednesday, June 9, 2010
Posted by Alan Childress
From the Harvard Program for the Legal Professon, Nisha Agarwal and Jocelyn Simonson have published to SSRN their article, Thinking Like a Public Interest Lawyer: Theory, Practice and Pedagogy, which will also be in New York University Review of Law & Social Change, vol. 34, 2010. Here is the abstract:
In educating future public interest lawyers, law schools must cultivate in students the combination of intellectual, emotional, and normative thinking required for the complex world of practice. This article presents one such method for teaching critical public interest lawyering: the integration of social theory and public interest practice introduced by the Harvard Law School Summer Theory Institute. The theory-practice method of the Institute, in which law students engage with social theories while participating in full-time summer internships with public interest organizations, demonstrates the benefits of creating a space for students to draw connections between abstract conceptions of justice and on-the-ground efforts to lawyer for social change.
This article begins by using the theories of Pierre Bourdieu to explore a dichotomy between theory and practice in public interest law that can often inhibit efforts to pursue social justice lawyering. Then, drawing upon the discussions the Summer Theory Institute’s students had about three theorists – Michel Foucault, Friedrich Hayek, and David Couzens Hoy – this article demonstrates how theoretical reflection placed in the practice setting can cultivate in law students the kind of normative thinking necessary to make them inspired, self-reflective, and critically engaged public interest lawyers and agents of social change.
Monday, June 7, 2010
The Nevada Supreme Court reversed a conviction for second-degree murder and related offenses due to the State's failure to properly respond to an issue raised on behalf of the appellant:
In this appeal, we have the duty to publicly reiterate the importance of submitting attentive appellate briefs and the unfortunate obligation to address the unforgiving consequences resulting from a respondent’s failure to respond to relevant issues raised on appeal. In his opening brief, appellant...Polk argues that his constitutional right to confrontation under the Sixth Amendment of the United States Constitution and Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ___, 129 S. Ct. 2527 (2009), was violated when the findings of a gunshot residue analyst who did not testify at trial and was not subject to cross-examination were admitted. In its answering brief, the State failed to directly address the Crawford and Melendez-Diaz issue or argue, alternatively, that any potential constitutional violation was harmless error. Polk argues in his reply that because the State failed to respond to Polk’s alleged constitutional violation, it effectively confessed error under NRAP 31(d). We agree and reverse and remand for a new trial.
The State failed to respond to a critical issue:
We recognize that the State filed a lengthy answering brief addressing Polk’s other issues on appeal; however, the State failed to address Polk’s argument that his constitutional right to confrontation under Crawford and Melendez-Diaz was violated. This is a significant constitutional issue that compels a response. The issue was clearly raised in Polk’s opening brief and reply brief, the argument regarding it collectively consisting of approximately four pages. Melendez-Diaz was decided on June 25, 2009. The State filed its answering brief six weeks later, on September 10, 2009. In Polk’s reply brief, he explicitly referenced the State’s failure to directly address the constitutional issue. Even after being notified of its failure to respond to the Crawford and Melendez-Diaz issue, the State failed to supplement its response and elected to wait until oral argument to address the constitutional issue or harmless error. Such appellate practice causes prejudice to Polk’s ability to adequately prepare for or respond during oral argument.
Accordingly, we grant Polk’s oral motion to exclude the State’s oral argument on the Crawford and Melendez-Diaz issues and disregard the State’s argument. Because the constitutional right to confrontation under Crawford and Melendez-Diaz was repeatedly raised throughout the appeal, but the State failed to address or even assert that any potential violation was harmless error, we invoke our authority under NRAP 31(d) and consider the State’s silence to be a confession of error on this issue.