Quote of the Day - It's pretty clear from the more than 60,000 pages of documents that have been released that [now U.S. Supreme Court Chief Justice] John Roberts has a great sense of humor. In this memo, he offers a lawyer joke.
Clerk Overrules Judge Disallowing Use Of Electronic Evidence
MIPTC was recently engaged in a long-cause, document-intensive trial. We waded through enough documents to take up several compact disks, which now reside (thankfully) on my tablet computer's hard drive. In court, we used Trial Director software to present the evidence, which is a combination of documents saved in Adobe format and video, through a projector onto a screen set up in the jury box.
The parties, lawyers, witnesses, judge, court reporter, bailiff and clerk can easily see the exhibits on the screen, and when necessary, we can zoom in to the relevant portion of the exhibit and blow it up even further. Compared to some set-ups, it relatively low-tech, but it works tremendously well - well almost. I have only one horror story.
But more on that in a minute.
During the typical housekeeping discussions with the judge on the first day of the trial, I explained the difficulties in dealing with such a large quantity of documents to the judge and obtained permission to use the computer system in the courtroom to display the evidence. The judge likewise agreed to accept the evidence in the form of the compact disks we prepared. I dutifully handed them to the clerk.
That's when the brakes got applied. The clerk's supervisor decided to become involved.
She wants paper copies, and only paper copies. Forget what the judge ruled, if I want my exhibits marked, then they have to be in paper form. She very politely (but firmly) reminded me that the judge doesn't mark exhibits, she does. So, we're one-fourth of the way through the trial, and we're now printing out copies of all the exhibits that have been introduced too far, and will be introduced.
We've applied to the CHP for an extra-long trailer, weight waivers and bought "Oversize Load" signs for the truck to take the documents to the courthouse, along with a forklift to take them in. We'll put the pallets right on the clerk's desk next to the compact disks.
No matter how technologically advanced you are, there are practical realities that will have an influence on your use of it.
Our horror story? Despite my caution to make an electronic backup, heading pell-mell for the trial, we didn't and of course the (brand new) LaCie hard drive crashed two days into the trial. We copied the disks to the tablet and were back up and running in a little under an hour, while the judge, lawyers and witnesses waited. One other caution: While the Trial Director software worked passably well, it was clunky and difficult to use, so we're now searching about for a more user-friendly interface. My assistant recommends against a repeat run.
Supremes Launch New Term - Plenty On The Docket And One Hopeful For The Docket
As the Supreme Court kicks off the second semester of the Roberts term, the Law Librarian's blog is best place to go for a roundup of what's on the docket. It's chock full of resources and will lead you down the black hole of the world surrounding The Court. For the definitive roundup, however, homage has to be paid to the SCOTUS blog and its new, easy-to-use wiki.
There are some 43 cases on the docket so far, with 17 just added days ago, perhaps in reaction to the uniform criticism of The Court's last term, dubbed by some as "Supreme Court Lite." Of these 43 important cases, MIPTC has his eye on several.
For closely-held businesses, the case of Boulware v. US involves a corporate shareholder who diverted funds (some $4.5 million) to his girlfriend and then found himself deep in the weeds with the IRS. He got there apparently because he broke up with his girlfriend, who perhaps not surprisingly wanted to keep the money for herself after the relationship was over. They ended up in litigation with claims and counter-claims flying back and forth, but sooner rather than later the IRS picked up on the case and sued for back taxes, alleging the shareholder improperly diverted funds to avoid taxes, and filed criminal charges.
If you own a business and participate in this type of "tax planning" (said with tongue planted firmly in cheek), then you'll want to watch for the outcome of this case. MIPTC's bet? It will have something to do with avoiding death and taxes - two things you really can't avoid.
It's a big year for taxes. There's another tax case involving the sale an investment interest in Lexis-Nexis, and while important for some big businesses, it won't have the cautionary tale of Boulware. And, if you buy bonds, you'll want to watch the outcome of this case to determine whether you can buy bonds in one state and pay taxes on those bonds in your home state.
Of the upcoming cases, there is a major securities case that has many different takes. There's at least 14 different amicus briefs on file in the case of Stoneridge Investment v. Scientific Atlanta, and there will likely be more. It's garnered so much attention because the outcome will determine whether third parties can be held liable as primary actors if they were tangentially involved in a securities fraud scheme. As you would expect, there's a group of plaintiff's attorneys clamoring for more defendants in these cases and just about everyone else in the securities industry claiming, "not me." Stay tuned.
The World Court
Perhaps of more academic interest over whether the judiciary will ever get involved with the global village is the case of Medellin v. Texas, where the Supreme Court will have to determine whether the several states have to comply with the judgment of the World Court when they arrest foreign nationals in their states. Under World Court law, a foreign national must be told when arrested that he/she has the right to contact the consular office of his/her own country.
As Americans, we demand that right when one of our own is arrested on foreign soil, but evidence here in the US shows spotty compliance, at best. The question arises whether the failure to advise Jose Ernesto Medellin of this right is sufficient to overturn his conviction for the strangling murder and gang rape of two teenage girls in Houston in June 1993. MIPTC observes this case would likely go nowhere if it involved solely the right to counsel under the US Constitution, but it's different when you're on the world stage and you want other countries to treat your citizens with care. Something about the Golden Rule....
Finally, two other cases of interest involve voting rights and the death penalty. The significance of death penalty case from a legal standpoint arises because it's the first time since 1879 that the Supreme Court has heard one involving the method of execution, now as you know done by lethal injection. The last time as you know from watching old Westerns, the Court upheld execution by firing squad. It was in the case of Wilkerson v. Utah, when the Court's order held "that you there [in the territory of Utah] be publicly shot until you are dead."
The other case (actually two consolidated cases) involves a fight between Democrats and Republicans, which may affect the outcome of the upcoming Presidential elections. The dispute centers on whether states can require voters to produce government-issued photo IDs in order to cast a vote. Republicans claim the requirement eliminates voter fraud by ensuring no one from the cemetery votes and Democrats claim it will prevent poor, elderly and otherwise disenfranchised voters without photo IDs from presenting themselves at the polling place.
There's also a case involving the distribution of child pornography, but it depends on how you look at the underlying statute: does it prevent child pornography or catch just about everything in its grasp, impinging on free speech?
Many remember last term's opinion in Rapanos, the wetlands decision, where no one seems to be able to agree which version of the Court's opinion is the central opinion. There's a case where a Petition for Writ of Certiorari is pending but not yet granted, Johnson v. US, where the issue is whether Justice Kennedy's stand-alone concurring opinion or the narrower opinion of the four Justice plurality is the controlling opinion in Rapanos v. US. MIPTC hopes The Court takes this case and clarifies who speaks for the Court.
Lawyer 2 Lawyer Internet Radio Discusses the Perfect Circle
The latest Global 100 report shows the top U.K. firms growing, with a surge in profitability and it is creating quite a stir here in the States. The Magic Circle quintet-5 elite law firms are looking at world domination when it comes to global business and law.
On this week's Lawyer 2 Lawyer, we discuss the power of the Magic Circle, the competition between US and UK firms and other corners of the globe and take a look ahead at what the future holds for business and law in the UK. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we turn to Richard Lloyd, The American Lawyer Magazine's, Chief European Correspondent, who recently wrote an article on this topic entitled, Magic Circle Firms Have the Magic Touch. Don't miss it!
La Meme Chose - Simply The Best
The anonymous (well, to some) Editor at the weekly blawg review, started a meme to identify his/her choice of Simply The Best Top Ten Blawgs, and May It Please The Court is extremely flattered to be included on that short list. As a nominee, I've been asked to identify my top ten favorite legal blogs (or blawgs, in the parlance). Any such list is fraught with peril because there are so many good blawgs out there. I'd feel better if I could rattle off my top 100, but that's not the meme, so I'll stick with the program.
Here they are:
Don't worry if your blog didn't make it on this list - it's not a function of your fine writing, because there are many out there who should be on this list. In fact, there are several others that I'd like to include on this list but didn't because I tried to limit it to those who post very frequently. Frankly, I would have simply duplicated the Ed.'s list, but that would be, well, redundant and not very refreshing or informative. So, for those on Ed.'s list and not listed here, you've already got my vote.
I would be remiss, as well, if I didn't recognize this writer's blogmother, Denise Howell, the one who got me off and running. Apart from this list, and the long one that's MIPTC"s blogroll, my other favorite blogs, thanks most of all to you who read this blog day after day.
Dead On Arrival: Med-mal Lawsuits Against Doctors, Nurses and Hospitals
You may not have noticed, but tort reform has done its job: it's not worth an attorney's time and effort to file a medical malpractice case in California. Today's Daily Journal (subscription required) published an article by Staff Writer Rebecca Beyer, who interviewed a former med-mal attorney, Linda F. Rice.
The article notes Attorney Rice reviewed a "stack of potential cases she rejected outright: a baby who died after waiting hours to be admitted into a pediatric unit, a teenage boy who died after his ventilator malfunctioned, a mother whose baby died in utero - doctors performed an emergency hysterectomy on her, eliminating her chance to have other children. 'These are all $250,000 cases in the state of California,'" Rice told the reporter.
At $250,000, an attorney can't afford to take the case for a possible $75,000 contingency fee. It costs more than that for the attorney to litigate the case. It's a matter of economics. MICRA, the statute enacted in 1975 to cap malpractice recoveries against medical professionals, has capped at least one aspect of the profession.
So Attorney Rice, like many other med-mal plaintiff attorneys, has shifted practice areas and no longer takes medical malpractice cases. One less Plaintiff's attorney in the mix. Likewise, defense lawyers are shifting practice areas since there are no longer many suits against doctors, nurses and hospitals to defend.
MIPTC offers two observations: why are medical professionals complaining about the high cost of malpractice insurance when lawsuits have virtually dropped off the map, and why are health insurance costs spiraling upward and out of control?
Maybe the legislature should look into making further changes in this industry.
Lawyer 2 Lawyer Internet Radio Evaluates Rankings
Many questions remain when it comes to lawyer ranking websites: What are the legal ethics issues? Are they credible? Does money play a part in upping a lawyer's rank? Is it simply a popularity contest amongst peers?
On this week's Lawyer 2 Lawyer, we discuss the legal ethics and marketing that surround law ranking websites and what these sites are doing in a quest to build a credible ranking system for attorneys. Please join Law.com blogger and host Robert Ambrogi as he turns to the experts to give their vantage point: Katrina Dewey, the founder of Lawdragon, Mark Beese, Chief Marketing Officer for Holland & Hart and Legal Marketing Association Board Member and Ben Cowgill, lawyer, writer and teacher in the field of legal ethics. Don't miss this riveting discussion.
It Depends On How You Look At It
Is Carbon trading essentially just the right to pollute or is it ridding the world of greenhouse gases? Reducing carbon dioxide takes work - benchmarking current output, reducing and capping output and then determining offsets, such as planting trees. Plus government regulation. Lots of regulation and complying with those regulations.
It's a big world out there, and what was done in Europe should work here. What are we waiting for? The government? Nah. It's called private enterprise, works every time. Anyone want to start carbon trading here?
UCI's New Law School, The New Dean And The New Curriculum
Much has been written about Michael Drake, M.D, and Erwin Chemerinksy, J.D. and the start of a new law school at the University of California, Irvine, and much of it is wrong. There are only two people who actually know the discussions that took place, and those two people have resolved whatever issues they may have faced together and have elected to move forward.
It's time the rest of us move forward, too. MIPTC is disappointed some continue to thrash about, missing the whole point. Disclaimer / full disclosure here: I serve on the UCI Provost's Advisory Committee for the Donald Bren School of Law, so my interests lie in ensuring the success of the school, the UCI administrators, our new Dean and the students who will attend in Fall 2009 and beyond.
Suffice it to say that every law student and law-student-now-lawyer can understand how difficult the transition may be for a law professor to make from the ivory tower to the head administrator's office. We likewise understand that a Dean must work by creating a consensus from many disparate groups. Those already in a position of academic leadership, having successfully made the transition, understand even better than the rest of us. The transition from professorship can be bumpy and can result in signs that call into question the ultimate success of the switch from professor to Dean (read: independent to consensus-builder/administrator). Judgments can also be made too quickly and perhaps not considering the background of the signs.
When Chancellor Drake offered the Deanship to Professor Chemerinsky, the Chancellor wanted the focus on the announcement, cooperation with the administration and building the law school. When Professor Chemerinksy's article came out, free speech was beside the point. Indeed, anyone who knows the two knows, generally speaking, that they share the ideology. Instead, it appeared to Chancellor Drake that as an administrator, consensus building might not be the first agenda. Plus, the two might not be able to work together and there may have been an agenda different than he originally understood. On that basis, the offer was pulled back. When the ensuing but off-topic uproar occurred, Chancellor Drake faced the issue and flew to North Carolina to talk with Professor Chemerinsky. They both spoke openly, resolved the misunderstandings and reconnected, the offer restored. They both addressed the issue, apologized for the confusion and moved on.
Now for some other perhaps overly broad generalizations, but stick with me. I'm trying to make a point apart from the generalizations. Add to the mix above the surprise of many outside the current situation that a professor could be liberal. Huh? Practically every professor I've met on a college campus across the country is liberal. Conservatives tend to go into business, or perhaps its more accurate to say that owning a business tends to make you for the most part conservative. The only other place you typically find conservatives is in government, and then its more a matter of convenience for fundraising than anything else. Just call me crazy. Or cynical.
Apart from all the wild speculation, crazy accusations and uninformed guesses of those who have fervent ideals one way or the other, here's the net result: the Chancellor and Dean-to-be met, reached a common understanding, apologized to one another and (why I don't know) the rest of us. It seems to me whatever issues arose were between them. The rest of us have plenty of other drama in our lives without creating more.
But I guess that's why tabloids sell.
Perhaps with all the folderol, we lost the central focus: let's work with Dean Chemerinsky, his law-professors-to-be, the community and the Chancellor to build the best major law school to open in 50 years.
Imagine. Building rather than tearing down.