• Watch where you click: “Kentucky (secretly) commandeers world’s most popular gambling sites” [The Register/OUT-LAW]
• Erin Brockovich enlists as pitchwoman for NYC tort firm Weitz & Luxenberg [PoL roundup]
• U.K.: “Millionaire Claims Ghosts Caused Him to Flee His Mortgage, I Mean Mansion” [Lowering the Bar]
• Prosecution of Lori Drew (MySpace imposture followed by victim’s suicide) a “case study in overcriminalization” [Andrew Grossman, Heritage; earlier; some other resources on overcriminalization here, here, and here]
• Exonerated Marine plans to sue Rep. John Murtha for defamation [Pittsburgh Post-Gazette]
• Snooping on jurors’ online profiles? “Everything is fair game” since “this is war”, says one jury consultant [L.A. Times; earlier]
• Allentown, Pa. attorney John Karoly, known for police-brutality suits, indicted on charges of forging will to obtain large chunk of his brother’s estate; “Charged with the same offenses are J.P. Karoly, 28, who is John Karoly’s son, and John J. Shane, 72, who has served as an expert medical witness in some of John Karoly’s cases.” [Express-Times, AP, Legal Intelligencer]
• School safety: “What do the teachers think they might do with the Hula-Hoop, choke on it?” [Betsy Hart, Chicago Sun-Times/Common Good]

• Sarah Palin Baby Name Generator; mine is Pie Gallon Palin. #
• McCain assails SEC’s Cox, but Bainbridge is going with Cox; #
• Yes, racial profiling figures into use of peremptory challenges [Sommers, Psychology Today via Deliberations] #
• SEC’s net capital rule waivers to blame for credit blowup? [NYSun] #
• NY Observer’s Doonan cool to Palin eyeglass craze; #
• Business lobbies went along with expansion of ADA litigant categories [Point of Law] #
• @teafortillerman I think “trough gutted palin” is the best I’ve seen yet #
• Don’t blame Gramm-Leach-Bliley for housing bubble [MargRev] #
• Experimentally incorporating Twitter into Overlawyered; #
• @kevinokeefe I’m using Firefox and “follow” button on Twitter fails until I refresh. #
• PR firm retracts Tweet that sought to scare up class action plaintiffs [O'Keefe] #

If you apply for a job handling million-dollar financial exposures or life-and-death safety risks, your prospective employer generally won’t be allowed to ask at the interview what prescription medications you may be taking. On the other hand, if you’re called as a potential juror on a case, the lawyers may enjoy carte blanche to probe and dig to their heart’s content, and you may be obliged to answer the questions proposed by their jury consultants. “A secondary reason for asking is strategic — to bounce jurors they don’t want and use medications as an excuse.” How about requiring the voir dire inquisitors to restrict themselves to the same formulas employers are supposed to use to avoid ADA liability, e.g., “Is there any reason why, with suitable accommodation, you would not be able to concentrate, sit for long periods of time, apply unclouded judgment, and do the other things expected of jurors?” (Julie Kay, National Law Journal, Aug. 26).

• “Law school is not such a leap” for licensed Nevada prostitute’s next career move — hey, we didn’t say that, Robert Ambrogi at Law.com did [Legal Blog Watch, Bitter Lawyer]
• Today’s representative class-action plaintiff: “For five years, her diet consisted almost exclusively of Chicken-of-the-Sea tuna…” [PoL]
• Prolific California disabled-access filer Jarek Molski ordered to pay fees for “scorched-earth” tactics in one case, but wins a second [Metropolitan News-Enterprise via Bashman]
• Another sperm donor surprised by legal obligation to pay child support [Santa Fe, N.M. Reporter; earlier]
• “Lawyer Fees Jumped 50% After Bankruptcy Law Change” [ABA Journal]
• “Whatever it takes to win a case”, and checking out jurors’ Facebook profiles is the least of it [NLJ]
• High-profile U.K. attorney Nick Freeman registers his nickname “Mr. Loophole” [Times Online a while back]
• When can a plaintiff claiming sexual assault sue anonymously? Courts will apply mushy balancing test [NYLJ]
• Hold on to your hats, looks like Geoffrey Fieger is online [Fieger Time]

Newsweek reports on Laura Day, a $10,000-per-month psychic to the powerful, who’s gained a few clients in the legal profession:

A Manhattan attorney who serves as special counsel to several white-shoe law firms has used Day’s insights to help her select juries and anticipate the opposing team’s arguments. “Day saves me thousands of minutes on my cell phone” working a case, says the attorney, who also didn’t want to be publicly identified.

Day denies that she has psychic powers, per se; rather, she has “intuition,” a term more palatable to her clients, “red-meat-eating, Barneys-shopping, Type A personalities.” (The $10,000-a-Month Psychic, Newsweek, Jun 30.)

Unless defendant Neil Entwistle is provided with a jury consultant at Massachusetts taxpayer expense he won’t stand a chance of a fair trial in his much-publicized murder trial, or so runs his defense lawyer’s claim (Ambrogi; The Jury Box). More: Greenfield.

• Polar bears on parade: “Lawsuits are not the best way to force the public into solving planet-size problems such as climate change.” [Christian Science Monitor editorial]
• Jury convicts private investigator Anthony Pellicano, trial of entertainment lawyer Terry Christiansen set for July [Variety; earlier]
• Knockoff sneakers differed from Adidas original in having two or four stripes instead of three, didn’t save Payless Shoes from getting hit with $304 million verdict [American Lawyer]
• Following up on our discussion of municipal tree liability: Michigan high court OKs homeowner class action over sewer line damage from city trees [AP/MLive]
• Attorney Franklin Azar, of Colorado TV-ad fame, says jury’s verdict ordering him to pay a former client $145,000 was really a “big victory” for him [ABA Journal]
• Annals of tolling-for-infancy: “Dog bite 10 years ago subject of civil suit” [MC Record]
• Feds indict Missouri woman for cruel MySpace hoax that drove victim to suicide: Orin Kerr finds legal grounds weak [@ Volokh]
• “I blame R. Kelly for Sept. 11″: some ways potential jurors managed to get off singer’s high-profile Chicago trial [Tribune; h/t reader A.K.]
• Update: “click fraud” class actions filed in Texarkana against online ad providers have all now settled [SE Texas Record; earlier]
• Judge orders dad to stay on top of his daughter’s education, then jails him for 180 days when she fails to get her general equivalency diploma [WCPO, Cincinnati; update, father released]
• Lawyers still soliciting for AOL volunteer class actions [Colossus of Rhodey; earlier]

It has long been noted that lawyers can (when judges let them) employ the process of jury selection to plant themes, factoids and manipulative images favorable to their cause before a trial even gets under way. Which brings us to the just-begun Galveston trial of lawsuits against BP over a deadly 2005 explosion at its Texas City, Tex. refinery:

As Brent Coon, an attorney representing four of the five workers whose lawsuits are set to be tried, talked to potential jurors, he displayed a picture of Enron’s logo on two large screens behind him.

Jim Galbraith, one of BP’s attorneys, objected to the oil company being compared to what happened at Enron, which went bankrupt in 2001. Galbraith accused Coon of arguing his case before the trial had begun.

“We are not trying to say BP is Enron. But Enron did have a major case with a lot of publicity and did a lot of things wrong,” Coon said before state District Judge Susan Criss ordered the Enron logo off the screens. …

Galbraith later objected when Coon showed the jury pool of more than 200 people a well-known photograph of major tobacco company CEOs raising their hands in 1994 just before they testified to Congress that nicotine wasn’t addictive when internal documents showed the companies knew the opposite was true.

“He’s still arguing his case,” Galbraith said.

Criss later told Coon he couldn’t show any more of these images. …

Just to confirm for those who may be wondering, BP, long known as British Petroleum, is not a tobacco company and has no particular connection to Enron other than being in the energy business. Maybe BP should have used its side of juror selection to flash large images of scandal-plagued or widely disliked Texas plaintiff’s attorneys who are not Brent Coon. (Juan A. Lozano, “BP Objects to Enron Comparisons”, AP/Forbes.com, Aug. 31).

We’ve pointed out doctor-bloggers who have provided first person accounts of being sued for malpractice, but the last doctor on the list, the pseudonymously-named “Flea,” is taking it one step further: he’s blogging about his own trial as it happens. Today’s post is “Flea on Trial - Day One: Jury Selection.” You can follow the whole series here.

Meanwhile, New York Personal Injury Lawyer Eric Turkewitz comments, from a trial lawyer’s perspective, on some of the dangers of a doctor blogging about a case in near-real time. Our favorite tidbit is this:

His decision to walk this high-wire without a net brings us to a third issue: If plaintiff’s counsel finds out about the blog, should it be used at trial? A lawyer’s gut reaction may be yes, in order to claim to the jury that what they are seeing is a well-rehearsed act.

But if the risk is that the insurance carrier uses it as an excuse to disclaim on a plaintiff’s verdict, it may be entirely counterproductive. In this sense, Flea shares a common goal with his nemesis: They both want the insurance company standing there in case of a plaintiff’s verdict.

Well, sure — it is about the money, after all.

• First Democratic earmark for trial lawyers. [Point of Law; Grace]
• Philip Howard on the lack of trust in the American justice system. [Common Good/NY Sun]
• Cooperman pleads guilty to Milberg Weiss kickbacks. Anonymous commenter at WSJ Law Blog: “Mr. Taylor of Zuckerman Spaeder contends that Mr. Cooperman’s statements “have never been credible.” Then why on God’s green earth did Milberg Weiss repeatedly use Mr. Cooperman as a plaintiff in the first instance for so many years if he was not credible? Is Mr. Vogel, another plaintiff whom Milberg Weiss repeatedly used for decades who also has pled guilty similarly not credible? Milberg Weiss certainly has a penchant for finding “not credible” plaintiffs for representing class interests.” [Point of Law; WSJ Law Blog]
• Bone-screw litigation and informed consent claims. [Drug and Device Law Blog]
• Dan Markel has a more theoretical look at the car-wash “forgiveness” case. [Prawfsblawg]
• Getting rich on backdating (but not the way you think) [Ribstein]
• Jury selection in San Francisco [Cal Biz Lit; see also NLJ]
• Hawaii losing doctors; gov calls for reform; 86% of Hawaii med-mal claims without merit [The Honolulu Advertiser]
• The miracle of joint and several liability: Police chase injuries put city on hook $4.5 million, because city held a 10% responsible for felon’s car accident. [The Olympian]
• Judge Harry Hanna becomes star for his slap on the wrist to Chris Andreas, but, more jaw-dropping: Ninth Circuit Judge Bea defends the double-dipping lawyer. [Point of Law; Legal Pad; WSJ Law Blog photo of Andreas t-shirt]
• The Guardian v. AEI. [Adler @ Volokh; Frum; Point of Law]

Belatedly noted: Reader’s Digest gives us another generous mention (latest in a long series of such) as part of a wider project cataloguing ideas and proposals that could make the country better (Sacha Zimmerman, Reader’s Digest, posted Sept. 14). For another generous mention from the Digest, see Jun. 12, linking to an article by reporter Michael Crowley. And we’ve also been slow to link another good piece from Digest reporter Crowley, on the problems introduced by jury consultants “paid to stack the deck” (Michael Crowley, “Jury Riggers”, Apr. 2006). Sample:

A recent guide published by the Association of Trial Lawyers of America warned lawyers about jurors who may show “personal responsibility bias.” These jurors, the guide said, feel that “people must be accountable for their conduct.” Now there’s a chilling outlook! The guide advises: “The only solution is to exclude them from the jury.” That is, get rid of anyone who might actually care about seeing justice done.

In AAJ; accolades; jury selection

At the new “Trial Lawyer Resource Center” blog (which claims that it will have Tom Kline (e.g., Nov. 24, 2004) blogging), there’s a revealing post about the use of focus groups to manipulate jury selection and settlement discussions.

Continue Reading »

The Legal Reader points us to Court T.V.’s video of Attorney Joseph Caramango’s stunning display in the courtroom as he tries to explain why he was an hour late for a jury trial in which his client was facing life imprisonment. It wasn’t the five shots of tequila he had at 4 am the night before. It wasn’t the beer he admitted having at lunch the day before during jury selection.

Video is long and painful — a classic Schadenfreud.

The decay of occupational exemptions to jury service means that more doctors, nurses and other persons with considerable professional expertise are making it into jury pools and even sometimes being allowed to sit as jurors, at least assuming that lawyers decline to use challenges to exclude them. One Nassau County, N.Y. judge even recalls “presid[ing] over a business dissolution case in which the lawyers allowed an accountant to sit on the jury. ‘Why they left the accountant on I’ll never know, but the lawyers were quite satisfied,” he said. (Imagine — relevant life experience not being screened out in the course of the jury selection process!) Oregon prosecutor Joshua Marquis, an official with the National District Attorneys Association, does harbor a prejudice against one particular kind of professional called to jury service, namely lawyers themselves. “They’re terrible jurors — I should hit myself in the face with a stick if I ever let a lawyer on a jury again.” (Leonard Post, “Dealing With Jurors’ Expertise”, National Law Journal, Dec. 23).

The Lay-Skilling Enron criminal trial will be one of the highest-profile Houston trials in many years, but in the courtroom of U.S. District Judge Sim Lake the process of jury selection was over within a day. That should be a lesson to judges elsewhere — especially in state-court proceedings — who allow lawyers to turn voir dire into a manipulative process that can last weeks or even months. Tom Kirkendall and Norm Pattis comment.

P.S. The Wall Street Journal’s news side covers the issue today: Paul Davies and John Emshwiller, “Split Verdict on Selecting Juries Quickly”, Feb. 1 (sub only). Washington U. (St. Louis) law dean Kent Syverud says, “I think Enron ought to be a wake-up call to show everyone that it can be done”. Among those complaining of a too-short process is Christopher Seeger, the attorney for the plaintiff in the New Jersey Vioxx case recently won by Merck, who “said the case was lost in the jury selection. ‘If I had an opportunity to flesh out some of the biases I believe I would’ve been able to talk some of those people off the jury’”. P.P.S. The New Yorker has more about the jury questionnaires and consultants (Mimi Swartz, “Talk of the Town: Enron Multiple Choice”, Jan. 30).

…at the blog of speechwriter and ghostwriter Jane Genova, who for the past two months has been liveblogging the Providence retrial of Rhode Island’s lawsuit against former manufacturers of lead paint. Among topics we touch on in the interview: the role of media hype and TV cameras in big trials today; problems with jury selection, and the treatment of jurors generally; two reasons I hope Rhode Island loses its lead paint case; and the case for patience on liability reform. (Jan. 25).

The Texas Young Lawyers Association has published one of those “Fact/Fiction” guides to the jury selection process. Among its assertions: “Fiction: Lawyers ask questions designed to figure out who will help reach a verdict in their client’s favor.” And, by contrast, “Fact: The main thing we’re looking for from potential jurors is the ability to be open to both sides of a debate.”

Clay Conrad at JuryGeek (Dec. 18) finds this a good example of “Why People Think Lawyers Are Liars” and explains:

Let me make it clear: any associate with my law firm who looks mainly for jurors to be open to both sides of a debate will be unemployed before Voir Dire is over. We want jurors who will NEVER, EVER under ANY CIRCUMSTANCES, WHATEVER THE EVIDENCE consider the other side of the debate. We want jurors who are 100% biased towards our side, 100% hostile to the other side, and if we can get 12 of them, we want them.

We will settle for a fair and impartial jury, as a bare minimum. We assume, and have never seen this assumption proven wrong, that the other side is also seeking jurors who will be committed to their case, and biased against ours. That’s the way the game is played - and shame on TYLA for lying to the public and prospective jurors about it….

Any lawyer who says he wants a fair and impartial jury is either incompetent (being deluded by bar association PR) or is simply lying, lying, lying. The public knows that. I’ve spoken to many high school classes. I ask them what they think a lawyer wants out of a jury, and they tell me a jury that will vote for their client. We know they know. Yet we strangely persist in lying to them when we know we’ll be caught. That’s either insane or stupid.

What is weird is that bar associations lie, to people who they know will KNOW they are lying, in a vain attempt to improve the public image of the bar. What they are in fact doing is proving to the general public that lawyers are liars and manipulators who cannot be trusted - because they lie when, if they gave any thought to it, they’d know they’d be caught by anyone with two brain cells to rub together.

In ethics; jury selection; procedure

I’m in today’s Wall Street Journal (sub - $) with a generally favorable review of Sadakat Kadri’s new book “The Trial: A History from Socrates to O.J. Simpson“. A few excerpts from the review:

By 1880 the criminal trial as an institution had become standardized around the West to the point that readers on many continents found little that was unfamiliar in Dostoevsky’s account of the murder proceedings against Dmitri Karamazov. The lawyers popping up with objections, the witness box and table of evidentiary exhibits, the sensation-seekers filling the gallery — all were as common to the courthouses of San Francisco or Paris as to those of late-czarist Russia. Go back a few centuries to premodern Europe, though, and the forms of justice can seem to our eyes indescribably strange: trial by ordeal, by combat or by compurgation (the collecting of oaths from supporters) and so forth.

And yet the march of progress is not always quite so apparent. We may smile at the premodern practice of putting a pig or haystack on trial for having caused harm to a human being, yet our contemporary law abounds in forfeiture and pure-food cases with headings like United States v. 900 Cases of Peaches (1975) and United States v. One 1967 Pontiac Bonneville Convertible (1973)….

The continuities between past and present are many. Battles over jury selection, so typical today in big trials, propel the plot of Burnt Njal, a medieval Icelandic saga involving arson-murder and bloody retribution. The tendentious interpretation of ambiguous marks on witnesses’ bodies — a hideous aspect of the witch hysteria of the 16th and 17th centuries — reappears in the child-abuse prosecutions of our own era. Denunciation boxes, into which citizens dropped accusing notes in Inquisition times, popped up in police stations across Russia in the 1930s. Hype-fraught celebrity trials? They date back pretty much forever and serve useful purposes, such as calling attention to social problems that would never stir public debate if left abstract….Regarding the emotionally manipulative style of some courtroom champions, Mr. Kadri finds plenty of precedent. He quotes the 1897 Tennessee Supreme Court, which said that “tears have always been considered legitimate arguments before a jury. Indeed, if counsel has them at his command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises.”

As for glittering but empty turns of courtroom rhetoric, Johnnie Cochran was just building on a tradition that goes back to Shakespeare’s time. “Elizabethan schoolboys,” Mr. Kadri writes, “were commonly taught adoxography, the art of eruditely praising worthless things….The first English treatise on the subject appeared in 1593 and contained essays celebrating deformity, ugliness, poverty, blindness, drunkenness, sterility, and stupidity. Its preface claimed that it would be particularly useful to lawyers.”

Read the whole thing here if you are a subscriber, or go out and buy a copy of the Journal. Incidentally, the Journal’s editors had to drop a couple of paragraphs of my original review draft for space reasons. Here they are:

* On the centuries-old practice of digging up the rotting remains of deceased persons to make them stand trial on criminal charges, a judge named Pierre Ayrault observed in 1591 that after all it is natural to regard the reputations of the dead as of continuing interest — wouldn’t we want to free a wrongly accused decedent from suspicion? That still didn’t explain why it would be needful to exhume a corpse, so Ayrault suggested a painting of the accused be hung in court instead.

* On the differences, some apparent and some real, between American and British justice: “Plea bargaining has never been given legal recognition in England. Barristers nevertheless haggle over pleas and judges give ‘indications’ of their likely sentences almost every day in almost every court of the land.” On the other hand, some differences are very real indeed, as with British judges’ power to summarize for jurors the weight of evidence in a case: “The summing-up invariably pays lip service to the principle of jury independence — typically, by ending a devastating criticism with the observation, ‘It is, of course, entirely a matter for you.’”

In crime and punishment; Europe; jury selection; procedure; Tennessee; United Kingdom