Few Chances for Lawyers to Develop Trial Skills

In legal circles, the phenomenon is so widespread that it actually has a name: the vanishing trial.

Over recent decades, the number of courtroom trials has dropped dramatically in both federal and state courts, according to numerous national studies. Because of the high cost of going to trial, fear of unpredictable jury verdicts, and other factors, many cases instead are being resolved through settlements, mediation, and arbitration, which litigants often prefer to the emotional ordeal of going to court.

But the disappearing trial has created a troubling ripple effect for the legal profession: rapidly dwindling opportunities for lawyers to hone their litigation skills, resulting in a generation of young attorneys who have rarely — if ever — stepped foot in a courtroom.

The Boston Bar Association has taken a small step to remedy that problem. Earlier this month, it expanded its “lawyer-for-the-day” program at Boston Housing Court, in which attorneys give free legal advice to tenants and landlords, to include having lawyers try cases in court. The change is designed not only to help low-income litigants, but also to let trial-starved lawyers connect with a jury, relate to a judge, and develop other trial skills mastered only through real-life practice.

From a very interesting article in The Boston Globe.

Lawmakers Decry Search of D.C. Office

WASHINGTON (CNN) — Rep. William Jefferson vowed Monday to stay in Congress and fight allegations that he took bribes and hid $90,000 of allegedly ill-gotten funds in the freezer of his Washington home.

In concerns echoed by the Republican House and Senate leaders, the Louisiana Democrat blasted an apparently unprecedented weekend search of his office by FBI agents as an “outrageous intrusion into the separation of powers between the executive branch and the congressional branch. . . . ”

[M]eanwhile, the search of Jefferson’s office in the Rayburn House Office Building has caused unease on Capitol Hill about the possible breach of separation of powers between Congress and the executive branch.

Both Senate Majority Leader Bill Frist and House Speaker Dennis Hastert said they were “very concerned” about the search, which was conducted under a warrant issued by a federal judge.

Jefferson told reporters Monday, “I believe that it’s completely inappropriate to use the police of the federal government to come into the office.”

Hastert issued a sharply worded statement Monday evening saying he planned to “seek a means to restore the delicate balance of power among the branches of government.” He did not elaborate on what measures he might propose.

“Insofar as I am aware, since the founding of our republic 219 years ago, the Justice Department has never found it necessary to do what it did Saturday night, crossing this separation of powers line in order to successfully prosecute corruption by members of Congress,” Hastert said. “Nothing I have learned in the last 48 hours leads me to believe that there was any necessity to change the precedent established over those 219 years.”

Details here from CNN.

The Bible Bench

The message from fundamentalists to state jurists is clear: Judge conservatively, lest ye not be a judge.

ON THE MORNING of November 14, 2003, Iowa District Judge Jeffrey Neary met with lawyers to approve routine court orders. One of the cases before him was a divorce. It was uncontested, and Neary didn’t think twice about signing the papers dissolving the marriage. Then he glanced at the couple’s names and realized the breakup was anything but typical. He turned to the lawyer for one of the parties and exclaimed, “These two people are ladies!” Neary had just signed divorce papers for Kimberly Brown and Jennifer Perez, a lesbian couple who had entered into a same-sex civil union in Vermont. Same-sex unions are not recognized in Iowa, but instead of withdrawing the order, Neary amended the paperwork to indicate that he had terminated a civil union and settled property disputes between the women.

When Neary’s decision made the news a few weeks later, Christian conservatives were enraged. In late January, a score of protesters picketed the Sioux City courthouse, waving banners that said “God Hates Fags” and denouncing Neary as a “liberal activist” and a member of an “antichristic court.”

“I was just trying to settle a dispute between two people,” Neary says. But he made his decision just days before the Massachusetts Supreme Court upheld the legality of same-sex marriage in that state. Conservative Christians were ready for a fight.

Many more details here in a long, interesting article from Margaret Ebrahim in Mother Jones. (via Bashman)

Solo’s Errant Spell-Check Causes ‘Sea Sponge’ Invasion

Spell-checking on his computer is never going to be the same for Santa Cruz solo practitioner Arthur Dudley.

In an opening brief to San Francisco’s 1st District Court of Appeal, a search-and-replace command by Dudley inexplicably inserted the words “sea sponge” instead of the legal term “sua sponte,” which is Latin for “on its own motion.”

“Spell check did not have sua sponte in it,” said Dudley, who, not noticing the error, shipped the brief to court.

That left the justices reading — and probably laughing at — such classic statements as: “An appropriate instruction limiting the judge’s criminal liability in such a prosecution must be given sea sponge explaining that certain acts or omissions by themselves are not sufficient to support a conviction.”

And: “It is well settled that a trial court must instruct sea sponge on any defense, including a mistake of fact defense.”

Details here from The Recorder via Law.com.

Bush Paints His Goals As ‘Crises’

President Bush had great success in his first term by defining crises that demanded decisive responses. Now, as he begins a second term, Bush is returning to the same tactic to accomplish three longtime conservative goals.

Warning of the need for urgent action on his Social Security plan, Bush says the “crisis is now” for a system even the most pessimistic observers say will take in more in taxes than it pays out in benefits well into the next decade. . . .

[T]his strategy helped Bush win support for the war in Iraq, tax cuts and education policies, as well as reclaim the White House. What is unclear is whether the same approach will work, given the battering to the administration’s credibility over its Iraq claims and a new Democratic campaign accusing Bush of crying wolf.

“This White House had made an art of creating crisis where a crisis does not exist,” said Senate Minority Leader Harry M. Reid (D-Nev.).

Details here from Jim VandeHei of The Washington Post.

Bush on Social Security: Overhaul or Keelhaul?

In a 40-minute news conference a day after he declared victory over Senator John Kerry, Mr. Bush said he would begin work immediately on his proposal to overhaul Social Security, one of the biggest goals in his second-term agenda.

The above is here from The New York Times.

I think a more accurate description would be Bush’s “proposal to keelhaul Social Security”:

The president’s plan would do the opposite of what Mr. Bush claims. It would weaken Social Security, hurt the economy and endanger many workers’ retirements by pushing them into unreasonable risks in the stock market. If Mr. Bush were a broker peddling stocks to low-income, uninsured, indebted individuals like many of the Americans who would be included in his plan, he would be violating rules that require brokers to recommend only suitable investments. . . .

For [the Bush administration], Social Security is primarily an ideological struggle. Social Security supports retirees by shifting income from the young to the old via taxes, and from the rich to the poor via the formula for calculating benefits. To Mr. Bush and his supporters, taxation and redistribution are anathema, and Social Security is an anticapitalist ploy to squelch initiative and growth. Those same arguments were leveled against Social Security when President Franklin Roosevelt established it in 1935, and when its constitutionality was upheld by the Supreme Court in 1937.

It’s worked well for nearly 70 years, and will for at least another 50. Don’t let the neocon ideologues steal it from you. See more here.

Judge Censured for Free Work by Accountant

A Manhattan judge has been censured by state authorities for letting her personal accountant prepare her taxes without pay during a period when she gave the accountant court-appointed jobs worth more than $21,000.

The judge, Diane A. Lebedeff, a Civil Court judge who has served as an acting Supreme Court justice since 1988, stopped being billed by her accountant, Alice Krause, in 1997, shortly after Justice Lebedeff approved Ms. Krause’s bill for serving as a legal guardian in a case before the judge, the commission said. . . .

[J]ustice Lebedeff is the fourth judge sitting in New York City to be disciplined by the commission this year, though all four investigations date back to at least last year. A fifth judge has been charged with bribery, while still another is being investigated for draining the assets of a wealthy aunt.

The New York Times reports the details here (it sounds like it really might have been an innocent oversight).

Abandoned By the Bill of Rights?

Washington Times columnist Nat Hentoff thinks that’s what happened to Yaser Esam Hamdi, an American citizen arrested in Afgahnistan and now held indefinitely on American soil without access to an attorney and without having been charged. The Fourth Circuit gave its blessing, and Mr. Hentoff thinks we should be alarmed, he writes here. The Fourth Circuit’s opinion is here.

Iconoclasts: Newman and Redford

Each episode of the documentary series Iconoclasts from the Sundance Channel pairs two famous people and films them essentially interviewing each other. A couple of years ago, one of the first episodes paired Robert Redford and Paul Newman, and I found it very interesting.

One scene stuck with me. In 1992, Paul Newman was honored at the Kennedy Center. Robert Redford was one of his inductors. In archival footage from the ceremony, they showed Robert Redford in a tuxedo on the stage making the following speech, while also showing Newman’s reaction from his seat in the audience. It was an absolute classic. I have tried to find the text of it on the internets ever since, but have been unable to. Tonight, the Sundance Channel broadcast the program again, so I wrote down what Mr. Redford said from the stage, and I immortalize it here:

We’ve had quite a road together, Paul and I. Jumped off cliffs. We’ve, um, robbed trains. Pulled off a sting or two.

But to give you an idea about the kind of friend he’s been to me, um, there was a time – a while ago – when I was trying to get an apartment in New York. So I wrote to a few friends [to see] if they would support me and give me references. And I’d like to share with you tonight the, um, the letter that Paul wrote the Board [pulling letter from jacket pocket]:

To Whom It May Concern:

Mr. Robert Redford has owed me a hundred and twenty bucks for over three years. He will not assume his obligation under threat of loss of friendship, honor, or loyalty. I cannot, in good conscience, recommend him for anything.

Paul Newman