May the force not be needed – [Editorial]
The Birmingham News
June 20, 2007
Just because the U.S. Supreme Court refused to hear the pleas of Alabama's Death Row inmates doesn't mean Alabamians and their leaders have to turn a deaf ear, too.
The state of Alabama can and should ensure that Death Row inmates have decent legal representation throughout their trials and appeals. It's the very least the state must do if it continues to inflict a punishment that can't be taken back.
Instead, inmates sentenced to die in Alabama sometimes can't get a lawyer, period, for the important, latter rounds of appeals. The lucky ones get lawyers to volunteer to represent them. The unlucky ones can't find lawyers, miss deadlines for filing appeals and brush up against execution dates before their cases get a full measure of scrutiny from the courts.
No other state is so casual about legal defense in capital cases. Alabama shouldn't be, either, even though the Supreme Court chose not to take up the issue this time around.
Alabama surely wouldn't stand for such a hit-or-miss approach to prosecuting capital crimes.
"We do not have a system that depends on volunteer judges or volunteer prosecutors," said Bryan Stevenson, whose Equal Justice Initiative represented inmates in the appeal to the Supreme Court. "We should not have a system that depends on volunteer defense attorneys."
To insist on a better system - one that guarantees competent legal representation from start to finish - isn't to coddle criminals or insult victims of violent crime.
It's to prevent the horror stories you hear on both sides of the capital punishment debate. A top-notch legal defense helps guard against unjust outcomes, better ensuring that defendants' rights are protected and that the wrong people don't end up being executed for crimes. A top-notch legal defense also helps guard against retrials and reversals that inflict further unnecessary suffering on victims' families.
No wonder the Death Row inmates' appeal had open support from four former Alabama appeals judges and three former presidents of the Alabama State Bar.
What's needed is a statewide public defender program that would not only represent poor Death Row inmates but also be a resource for private defense lawyers who still would be needed to fill the gaps in representation. At the very least, the state must insist on competent, well-trained and adequately compensated lawyers in death-penalty cases, from start to finish.
The Supreme Court may one day give Alabama no other choice. And our history suggests that is the surest way to bring about needed changes. We have a shameful record of not doing the right thing except under the mandate of a court.
But it's not the only way. Alabama should look at what it will take to ensure justice and make it happen, not wait on a court order.
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Attack Ads and Special Interests Cash Are Poisoning Judicial Campaigns, Critics Say
June 19, 2007
When Linda Trout was appointed to the Idaho Supreme Court in 1992, she became the state's first female Supreme Court justice and one of the youngest members of the court in state history.
Now, after 15 years on the high court, Trout plans to step down in August — in large part because she does not want to endure what she fears will be an expensive and divisive election. "Judicial elections have turned into bitter, nasty fights, which I don't think is seemly for the judiciary," said Trout, who was the target of an attack ad campaign when she last ran for office in 2002.
"I'm looking nationally at the trend toward more and more costly and contentious judicial elections," she told ABC News. "I don't want to go through that."
Over the last several years, once-tame judicial elections across the country have become high-stakes political battles, fueled by special interest money and the kind of raucous campaigning once reserved for legislative or presidential races, according to a recently released study from the Justice at Stake Campaign and the Brennan Center for Justice at New York University School of Law.
"The more money that's poured into judicial elections, the more likely it is that courts will become places that react to special interest groups rather than to the concept of impartial justice," Indiana Supreme Court Chief Justice Randall Shepard told ABC News.
More Politics, Less Objectivity?
Supporters of judicial elections say they ensure that judges are held accountable to voters. Critics warn the rising cost and coarsening tenor of judicial campaigns are trends that undermine the independence of the judiciary — and that have persuaded some candidates, like Trout, to avoid running at all.
Thirty-nine states elect at least some of their judges. State high court candidates in the 11 states that had contested elections last year raised more than $34 million, from groups such as the Democratic and Republican parties, the National Association of Manufacturers and trial lawyers, the report said.
The median amount of money raised by high court candidates last year rose nearly 20 percent, to $244,000, up from $202,000 in 2004, the report said.
An ‘Unacceptable Cost’
Five states set new fundraising records last year, including Alabama, where the race for chief justice was the second most expensive judicial election in U.S. history. Alabama's high court candidates raised a record $13.4 million in 2006.
Voters in that state saw about 17,000 television ads, many of them attack ads, during the campaign — that was more than during the last three election cycles combined. One ad warned that a candidate had freed a convicted killer from death row. Another warned that a candidate was "too liberal." A third insinuated that a candidate supported gay marriage.
In Georgia, former Attorney General John Ashcroft recorded an automated phone call in which he said an incumbent judge was a "liberal activist" … "who will stop at nothing to win," according to the Brennan Center report.
Television ads are now the norm in judicial elections, the report said. In 2000, candidates in four of 18 states ran television ads in judicial elections; last year, candidates in 10 of 11 states did.
"Just a few years ago it was a blip on the radar," said the Brennan Center's James Sample. "Now it's a mainstay in judicial elections."
Alabama Chief Justice Sue Bell Cobb, who won a seat on that state's Supreme Court after raising $2.6 million, called the cost of the election "unacceptable" and said she was troubled by the prospect of judges raising money or otherwise asking for support in their campaigns.
"People need to have complete faith in the courts, and raising large amounts of money doesn't give people comfort that they have an independent judiciary," she said.
Tort Reform and Free Speech
The rising price of judicial elections has been fueled, in large part, by the national fight over tort reform. Trial lawyers and pro-business groups, who want to limit the size of jury verdicts, are consistently the largest judicial campaign contributors.
In the last several years, business groups, led by the U.S. Chamber of Commerce, have funneled tens of millions of dollars into key races in states known for high jury verdicts in product-liability cases, such as Alabama and Illinois. These efforts have successfully unseated a number of judges.
Court candidates have also become far more outspoken about their personal beliefs in the last five years. This began when the U.S. Supreme Court, in Minnesota Republican Party vs. White, struck down a state law that prohibited judicial contenders from announcing their "views on disputed legal or political issues."
Since then, pressure has grown for prospective justices to take positions on social issues. Groups now send questionnaires to judges asking their views on abortion, gay rights and school prayer, among other issues.
To supporters, asking candidates to explain their beliefs is a matter of accountability.
"Voters need information on the judicial philosophy of the candidates," said James Bopp, who won the White case in the Supreme Court. "It takes campaigns and judicial free speech to ferret out judges that are prepared to legislate from the bench."
Changes in the System
At the same time, large influxes of cash seemed to be less effective in 2006 than in previous years.
Last minute infusions of cash into close races failed to sway elections in states like Alabama, Georgia and Illinois. The candidate with the most television advertising won 67 percent of the time, down from 85 percent in 2004, according to the Brennan Center report.
Some states are also experimenting with various election reforms. Alabama's Cobb said that she would push this year for nonpartisan elections and that she was considering proposals to have a committee of lawyers vet judicial nominations.
Other states, such as Nevada, are considering publicly financed elections or appointing judges, though that change may meet resistance in many states.
"I will defend our system of elected judges," said Alabama Associate Justice Tom Parker. "I certainly trust the voters more than politicians to select members of our judiciary."
Until the election system is reformed to lessen the influence of money, however, it will continue to lose lawyers who do not want to go through rough and tumble elections, according to Ohio Supreme Court Chief Justice Thomas Moyer. "There's no question it discourages many highly qualified lawyers who would make excellent judges," he said.
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The Best Judges Business Can Buy – [Editorial]
The New York Times
June 18, 2007
The problem of wealthy interests’ trying to influence court decisions by pouring money into state judicial elections continues to escalate, according to a newly released report. So does the threat to the impartiality, independence and integrity of the nation’s courts. If the courts are going to pursue justice rather than advance special-interest agendas, states must either adopt public financing and strict fund-raising rules for judicial elections or switch to a nonelective merit selection system.
Thirty-nine states elect at least some of their judges. The report — released by the Justice at Stake Campaign, the Brennan Center for Justice and the National Institute on Money in State Politics — found that by 2004, the amount raised by candidates for states’ highest courts had reached nearly $47 million nationwide, up from $29 million in 2002. In 2006, total fund-raising decreased to $34.4 million, largely owing to a decrease in the number of contested races. But the median amount raised by individual candidates in 2006 soared to nearly $244,000 — from the 2004 median of about $202,000.
Television ads, until recently a rarity in top-level state court races, are now the norm. Such ads ran last fall in 10 of the 11 states where such judges were up for election, compared with just 4 of 18 states in 2000. Average spending on television airtime per state was also up, much of it for 15- and 30-second attack ads. In the race for Alabama’s chief justice seat, the second-most-expensive judicial race ever, 17,830 spots were run on behalf of candidates.
By far the biggest spenders in the 2006 judicial elections were business interests. They contributed $15 million to the 88 state supreme court candidates who raised funds in the latest election cycle, about 44 percent of all contributions, and far more than the roughly $7 million that lawyers gave.
There were a few encouraging developments. Raising the most money correlated with victory in 68 percent of judicial races in 2006, down from 85 percent in 2004. But the overall picture is bleak enough that states need to act quickly to stop special-interest money from becoming, in the words of the report, “a permanent national campaign against impartial justice.”
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State's tort image still not good
The Montgomery Advertiser
June 15, 2007
Alabama has done a lot in the past 15 years to over come its reputation as a "tort hell." Before the state adopted tort reform measures that limited jury awards, Alabama justifiably was seen as a state with out-of-control juries that too often award ridiculously high judgments based on questionable evidence.
But a recent survey of general counsels for large businesses around the nation shows that among that group, at least, the state's image for having an anti-business lawsuit climate still hasn't improved very much.
The survey by the U.S. Chamber of Commerce ranked Alabama's tort system 47th among the states, behind only Louisiana, Mississippi and West Virginia. That ranking is up from 48th in 2005, but clearly the state's image among national business leaders for the fairness of its liability system still leaves a lot to be desired.
The survey ranked the state's on 12 categories involving civil liability lawsuits, and Alabama ranked among the worst five states in eight of those 12 categories. They were:
- On having and enforcing meaningful venue requirements, Alabama ranked 46th.
- On overall treatment of tort and contract litigation, Alabama ranked 46th.
- On punitive damages, Alabama ranked 47th.
- On rules on scientific and technical evidence, Alabama ranked 46th.
- On non-economic damages, Alabama ranked 46th.
- On judges' competence, Alabama ranked 47th.
- On judges' predictability, Alabama ranked 49th.
- On jury fairness, Alabama ranked 47th.
To a great degree, we think that the negative image portrayed by the survey shows that perception has not caught up with a new reality in Alabama. This state is no longer the tort hell it was in the early 1990s. Not only did changes in liability laws help to limit huge and unfair judgments, but the Alabama electorate started to place much more conservative judges in office.
Currently, for instance, there are eight Republicans on the state's Supreme Court, and the only Democrat is Chief Justice Sue Bell Cobb. In addition, all five judges on the Court of Civil Appeals are Republicans. For the most part, the overwhelmingly conservative high court has toned down on appeal those large judgments that still come out of the lower courts of the state.
So why does this survey matter? It matters because the image of the state's tort system in the national business community matters. And decisions that affect Alabama's economy -- where to locate business expansions, for instance -- can be based as much on perception as on reality.
Defenders of the liability lawsuit climate in Alabama are sure to point out that the state has had tremendous success in recent years in attracting new businesses and industries, and they are right. Alabama has been a regional leader in attracting new jobs. Unemployment is at a record low. Clearly a negative perception of the state's lawsuit climate isn't keeping businesses from relocating here.
But Alabama has paid billions in incentives and tax abatements to attract many of those new industries over the past decade. If the state did not have a negative image for its liability climate, would it have been possible to attract those same industries with fewer incentives? That's a question that business and trial lawyer interests can debate endlessly, but it only makes sense that a negative perception of the state's liability climate among business leaders has had some impact on the state's economy.
Business interests here in Alabama should do more to educate the public -- those citizens who eventually will sit on juries -- that there are negative economic impacts to the public at large from big jury awards. For instance, a major portion of the higher costs of doing business in a litigious climate are passed on to consumers, especially when it comes to insurance costs and medical fees.
For now, those responsible for Alabama's economic development need to hope that eventually the state outlives its reputation as a tort hell for the business community.
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State growing despite civil justice system – [Editorial]
Mobile Press Register
June 19, 2007
BUSINESS LEADERS concerned about the effect of Alabama's legal environment on economic development will not be reassured to learn that the state's own King of Torts says not to worry.
In a recent edition of his newsletter, Montgomery lawyer Jere Beasley pointed to
ThyssenKrupp's decision to locate a $3.7 billion steel plant in Mobile County as evidence that complaints about lawsuit abuse in Alabama are greatly exaggerated. Using the purple prose favored by many trial lawyers, Mr. Beasley wrote, "Shame on 'Chicken Little' and more especially on those in the tort reform movement who are funding his and other efforts to discredit Alabama and its citizens."
Chicken Little had better watch out. Jere Beasley and associates may be preparing the ground for a lawsuit accusing Ms. Little of intentionally inflicting emotional distress on trial lawyers. If the chicken has deep pockets, the trial bar probably will seek punitive damages.
However, Chicken Little can take some comfort in the fact Alabama no longer is the nation's "tort hell." Tort reform measures enacted in the late 1990s helped improve the reputation of the state's civil justice system. The election of strict constructionists to the Alabama Supreme Court made a positive difference, too.
It's possible that these beneficial changes, which Mr. Beasley and his allies fiercely resisted, did help Gov. Bob Riley and state economic development officials successfully woo ThyssenKrupp. But Alabama's legal environment still is a significant obstacle to economic growth.
A survey of corporate attorneys conducted for the U.S. Chamber Institute for Legal Reform shows the state has a long way to go to prove that it has a fair and consistent legal environment. The 2007 State Liability Systems Ranking Study put Alabama near the bottom -- in 47th place, above only Louisiana, Mississippi and West Virginia.
True, Alabama has climbed a notch in the ranking since the 2005 survey. Still, it would be helpful if Alabama leaders could do more than point to Mississippi's jackpot justice system and proclaim, "We're not that bad!"
Mr. Beasley and other opponents of legal reform insist that enormous jury awards and related torments of "tort hell" have no impact on the business community. They should try telling that to ThyssenKrupp executives.
Despite its decision to locate in Alabama, the German steelmaker worries about the legal climate in the United States, according to Gary Elliot, chairman and chief executive of
ThyssenKrupp USA. His concerns were described in a story published by The Hill, a newspaper that covers Congress.
"Litigation is a major business expense in comparison to Europe," Mr. Elliot said.
In the end, ThyssenKrupp decided that the attractiveness of the U.S. market outweighed the negatives associated with America's litigiousness.
You don't have to be a Chicken Little to worry that Alabama's legal system hinders the growth of small businesses and that it costs the state opportunities to land even more big industrial prospects.
Jere Beasley's arguments aside, Alabama needs more good jobs in manufacturing and high-tech industries, not full employment for trial lawyers.
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ALABAMA VOICES: Try to save court building
By J. Gorman Houston Jr., The Montgomery Advertiser
June 15, 2007
One block west of the state Capitol and across Dexter Avenue from the Dexter Avenue-King Memorial Baptist Church stands an endangered building which has been vacant since September 1993.
The building is not beautiful and it certainly not antebellum (unless the "bellum" is the Second World War). The building was designed in the modern mode with Egyptian Mosque motif by the noted architect, Hyman Wallace Witcover, in 1926 as headquarters for the Scottish Rites Masonic Order.
In 1932, the building was purchased by the state, and in 1938 the building was renovated for the Alabama Judicial Department by the prestigious Birmingham architectural firm of Warren, Knight and Davis. In the renovations the original Egyptian motif was replaced by a façade of Alabama limestone in a plain neoclassical design.
Twenty-four steps lead to the tall bronzed doors that open into an elegant arched entrance hall, which architectural historian Robert Gamble classifies as one of the finest neoclassical spaces in the city of Montgomery.
Beyond the entry hall is the Supreme Court Courtroom, where the Supreme Court heard some of the most momentous cases of the civil rights movement, beneath a high ceiling paneled with lotus blossoms (emblems of endurance).
For 54 years, this building housed the Supreme Court and during some of that time the attorney general, the courts of appeals, and the Court of Criminal Appeals.
From this building Chief Justices John C. Anderson, Lucien D. Gardner, J. Ed Livingston, Howell T. Heflin, Clement Clay Torbert Jr. and Sonny Hornsby presided over the Alabama Judicial Department. While the court occupied this building, the number of Supreme Court justices was increased from seven to nine and the Courts of Criminal Appeals and Civil Appeals were established.
In this building the first women served on the appellate courts and the first African-American served on the Supreme Court.
There is asbestos in the west wing of the building, nearest the Alabama State Bar Building. This will have to be removed whether the building is demolished or renovated.
Currently, there are 50 parking places on the north and west side of the old Judicial Building. If my measurements are correct, there are less than 32,500 square feet in the mound on which the old Judicial Building sits.
I do not know how many extra parking spaces an engineer could get in that space. However, I hear that there is a plan to remove the building and to have a surface parking lot for employees and visitors adjacent State office buildings.
I also understand that there is a long range plan to replace the surface parking with a parking deck fronting on Dexter Avenue. Currently, there are at least two surface parking lots on Dexter, in addition to the parking spaces on the west and north side of the old Judicial Building lot, and there is one parking deck which fronts on Dexter Avenue.
I am not offended by any of these parking spaces; however, having served in the old Judicial Building for the historic year of 1956-57 as a law clerk and from September 1985 to September 1993 as a justice, I hate to see another piece of Dexter Avenue's historic landscape disappear unless it is not economically feasible to preserve the neoclassical façade facing Dexter Avenue and the foyer and the courtroom.
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Attorneys sue site that comes up with ratings on ... lawyers
By Tricia Duryee, The Seattle Times (Wash.)
June 15, 2007
A lawsuit filed Thursday against Avvo.com aims directly at the Seattle startup's distinctive feature — a system of rating attorneys across the country on a scale of
one to 10. The plaintiffs, John Henry Browne and Alan Wenokur, are practicing lawyers in Seattle who called the system unfair.
They think their ratings, 5.2 and 6.5, respectively, were uncharacteristic of their experience, industry recognition and professional conduct.
The suit, which is seeking class-action status, was filed in U.S. District Court in Seattle by Steve Berman, a Seattle attorney who has handled high-profile class-action cases and is a partner at Hagens Berman Sobol Shapiro.
The defendants named in the suit include Avvo and its chief executive, Mark Britton, former general counsel at Expedia. Berman said the rating of Browne, a criminal defense attorney in Washington for 35 years, was hurt because Browne had been sanctioned by a state disciplinary authority.
He said a couple of potential clients who visited Browne's office last week said they would get another attorney because of the average rating.
The suit alleges the ratings violate laws against unfair competition and deceptive acts as outlined in the Washington Consumer Protection Act. Berman said it seeks an injunction to shut down the site or get it modified.
Britton said Avvo, a free site launched June 5, aims to give consumers information that is otherwise difficult to find. It includes data about lawyers in nine states and the District of Columbia, with intentions to add more. "We built Avvo to give consumers the information and guidance they need to choose the right lawyer," Britton said.
"As long as we continue to focus on the consumer, we should be in good shape," he said.
Berman says the site is unreliable. He cited an example of how a lawyer was able to raise his rating after entering information about an award he won during a softball game — something unrelated to practicing law.
Britton said that could be possible. If an award is added to the site that does not fit into a number of pre-determined areas, it can affect the rating but will be flagged.
An Avvo employee later goes through the site and checks to see if the award is meaningful. In the case of the softball award, Britton said the lawyer would get points at first, then lose them if the employee later deemed it inappropriate.
"We knew what we were doing was something new, and it would take some time for people to get their arms around it, but we were not expecting this visceral of a reaction," he said.
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Getting Law Firms to Like Commercials
By MARIA ASPAN, The New York Times
June 19, 2007
TELEVISION advertising has long been frowned on in the legal profession, as it can conjure images of ambulance-chasing personal injury lawyers and, in some cases, can run afoul of state laws. But a new partnership between a prominent legal directory and an Internet-based advertising agency is trying to overcome these negatives.
LexisNexis Martindale-Hubbell, which publishes a directory of lawyers and their credentials, announced a deal in late May to work with Spot Runner, an online service that helps small businesses advertise on television. Spot Runner, which is based in Los Angeles, will help law firms produce inexpensive television commercials that can run in local markets.
Although the Spot Runner Web site currently offers a general library of off-the-shelf commercials for legal services (among many other industries), the agency is creating new ads specifically for Martindale-Hubbell clients. These commercials, which will not be available in the general library, cover areas like family law, drunken driving, personal injury and general practice; commercials for criminal and immigration law are also being developed.
While the commercials in Spot Runner’s general catalog can be purchased and personalized for as little as $499, packaged advertising campaigns for Martindale-Hubbell’s firms will start from $10,000 to $50,000, including air time. Kurt Weinsheimer, vice president for partner development at Spot Runner, said that many small firms had been discouraged from television advertising because professional-looking commercials are prohibitively expensive and time-consuming. Under the new arrangement, law firms can work with their Martindale-Hubbell account representatives to use a Spot Runner ad and buy time in the more-affordable local, rather than the national, television markets. In those local markets, the commercials will run on broadcast and cable networks like CBS, CNN, ESPN and Fox News.
“The law firms that we’re targeting are smaller, more local firms in general,” Mr. Weinsheimer said. “The most important thing is the message to their communities.”
Among these firms, he said, “Very few have used television in the past, so we saw that as a great opportunity.”
Spot Runner has been successful with this model in the real estate market, allowing agents at national companies like Coldwell Banker and Century 21 to adapt commercials for use on local cable networks. The ad agency also worked with Warner Independent Pictures, a division of Time Warner, to create film commercials that ended by referring viewers to their local movie theaters.
“One of the key strengths of Spot Runner is their personal creative,” said Nicholas Karrat, the senior director of marketing and alliances for Martindale-Hubbell. “It looks like it’s done on a national level and at a very high price point.”
The television commercials, which have been in beta testing, are slowly being rolled out state by state; Mr. Karrat said Michigan would be one of the first states, a choice based on market demand. He said that despite some initial skepticism, all doubts were dispelled once the lawyers saw the final commercials. “That’s been the ‘wow’ moment,” he said.
“Law firms still spend a majority of their marketing dollars in printed yellow pages,” Mr. Karrat said. The new partnership, he added, reflected that the firms are increasingly “looking for alternate marketing channels.”
Even with costs reduced, the larger hurdles may be the public perception of most lawyers’ commercials, as well as various state restrictions on advertising by lawyers. The United States Supreme Court ruled 30 years ago that lawyers were allowed free speech, but many lawyers remain skittish.
Some states, including New York and New Jersey, have tight restrictions on all forms of legal advertising. In February, new rules went into effect in New York that prevent lawyers from using actors without identifying them as such, endorsements from current clients or attention-grabbing images or slogans in any advertising. Mr. Karrat said that Martindale-Hubbell would not initially reach out to firms that are based in New York and some other states because of those restrictions.
Powerful personal-injury law firms like Jacoby & Meyers have, meanwhile, set a precedent for aggressive commercials that may make lawyers at white-shoe firms want to wince.
“Lawyers will have challenges overcoming negative stereotypes in television ads,” said Burkey Belser, president of Greenfield/Belser, a brand-design agency, adding that he did not expect larger corporate law firms to embrace television anytime soon.
“I think it’ll certainly be interesting if we move away from plaintiffs’ firms towards ads that are really about other types of legal services for individuals,” like family law and estate planning, Mr. Belser said.
According to Kim A. Perret, the immediate past president of the Legal Marketing Association and the chief marketing officer for the law firm Sutherland Asbill & Brennan, plaintiff-oriented firms are most likely to use television and radio spots, and billboards.
“Because their clientele is mostly individuals, that is probably the most effective way for them to reach a mass audience,” Ms. Perret said, adding that the same might be true for the smaller firms that Spot Runner and Martindale-Hubbell are courting.
But other types of law firms have to consider what she called “the image issue” when contemplating television commercials. “I think that you’d have to overcome some prejudice that it’s unseemly,” Ms. Perret said.
Despite the strikes against it, advertising within the legal services industry generated more than $575 million in 2006, according to Nielsen Monitor-Plus. But the top 10 spenders are all personal-injury or plaintiff-related law firms like Jacoby & Meyers and James Sokolove, which came in at No. 1 with more than $25 million spent on advertising last year.
Among most other law firms, advertising is treated like a delicate necessity. According to Ms. Perret, national firms rely on print advertising in trade and business publications, as well as newspapers, to build name awareness (though more adventurous firms might dare to sponsor a segment on National Public Radio.)
And while online marketing has a niche for lawyers, it is small: Nielsen//NetRatings measured about $2 million spent on Web advertising in the legal services industry last year.
Martindale-Hubbell has long offered Web and print advertising opportunities to law firms, but this is its first foray into television. Mr. Karrat said that he was “not at all concerned” by potential associations with unsavory personal-injury ads.
“Being a conservative company, we’re going to take a conservative approach,” he said.
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Angst of Academia
The Wall Street Journal
June 13, 2007
It's no secret: Law can be a stressful profession. A new study suggests the angst begins in the classroom.
The study, published this month in the Personality and Social Psychology Bulletin, found high levels of distress and low levels of life satisfaction among law students. Its authors, a psychology professor at the University of Missouri-Columbia and a law professor at Florida State University, surveyed students at two unidentified law schools.
Part of the problem may lie with law-school curricula. Their paper suggests a focus on theory over practical training can leave students feeling disconnected from the work and generates cynicism.
Wall Street Journal LawBlog readers were quick to comment. "I will say from my personal experience I'm more apathetic, less passionate, in fact more boring a person generally, than when I entered law school," wrote West Coast 3L.
Not everyone was so glum. Another reader said many students "emerge from law school with their souls and their psyches very much intact."
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Experts say recruitment not final step in boosting ranks of minority lawyers
By Joyce Gannon, Pittsburgh Post-Gazette
June 13, 2007
Hiring more women and minorities won't necessarily diversify law firms. Firms need to follow up by providing mentoring and networking opportunities for those new lawyers to truly achieve inclusion and diversity.
That's according to Arin Reeves, a Chicago-based attorney who runs a consulting firm that specializes in diversity in the legal profession. "White males don't have to work at being part of the network; they are the network," Ms. Reeves said during a panel discussion at the University of Pittsburgh on how to attract and retain minority law students and lawyers in Pittsburgh .
Ms. Reeves was among the national and local speakers at the one-day event sponsored by Pitt's School of Law and the university's Center on Race and Social Problems.
Minorities account for only 5 percent of partners and 17 percent of associates at law firms nationwide, according to the National Association of Law Placement, and the numbers are even worse in Pittsburgh, with minorities comprising only 1.49 percent of law firm partners and 8.7 percent of associates, said Mary Crossley, dean of Pitt's law school.
" Pittsburgh is way below the national average,'' she said."There's a long way to go before a critical mass of minority lawyers call Pittsburgh home." At Pitt's law school, minority enrollment is 14 percent -- "well below where we want to be," Ms. Crossley said.
To generate more interest in legal education and careers among minorities, law schools should reach out to potential recruits as young as middle- and high-school students or children in neighborhood youth organizations, said Peter Alexander, dean at the Southern Illinois University School of Law.
Once law schools recruit minorities, "We often have too few students and faculty of color to serve as mentors. That's a problem we share with law firms." He cautioned against putting too much stock in the widely read national rankings of the best law schools published annually by news magazine U.S. News and World Report.
"Unfortunately, too many law schools are run by U.S. News & World Report. But I confess, I have a copy in my desk drawer," admitted Mr. Alexander. Many diversity training programs at law firms aren't effective, said Ms. Reeves, because "you can't train people to think differently in two hours."
With her own clients, she tries to promote "dialogue" about race and gender issue. "The best dialogues are where internal people facilitate it rather than an outside consultant where people will put on their best [politically correct] faces and say the right things."
One tactic Ms. Reeves uses to promote frank discussions about diversity is to show movies such as "Crash," the 2005 award-winning drama set in Los Angeles. "It throws a bunch of racial stereotypes at you," she said.
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New law firm entering market with alternative to hourly fees
By Ford Gunter, Houston Business Journal
June 8, 2007
A new Houston law firm is betting that "a whole new model" for charging defense litigation fees will find favor with companies accustomed to paying high hourly rates.
When Schiffer, Odom & Hicks LLP opens for business on June 18, the legal shop will join a growing number of law firms that have financially restructured to de-emphasize traditional hourly billing.
Companies are tired of paying for a lot of expensive lawyers on their disputes," says Adam Schiffer, a founding partner with Al Odom and Andy Hicks.
The partners say they will earn fees for results, not activity by offering several variations on flat fee, contingency and even hourly compensation structures.
Schiffer calls the approach a "whole new model" of defense litigation payment. At settlement, the client pays a certain percentage of the difference between the plaintiff's last demand before litigation or arbitration.
For example, if the plaintiff's last demand is $20 million and the case is settled for $5 million, the client pays a pre-arranged percentage of the $15 million difference. "It's like a plaintiff's attorney fee," says Schiffer. "I think companies want their firms to have skin in the game in terms of the financial risks/rewards."
Schiffer Odom has an appellate specialist on board, and the firm plans on adding two or three associates if all goes well. But as a small firm in a crowded field, the attorneys realize they're starting the race at the back of the pack.
Schiffer remains optimistic.
"I think companies are becoming more sophisticated in disputes and realize they don't need to hire a big firm to get first-rate service," he says.
A hard sell to clients
Steven Susman, founding partner of Houston-based Susman Godfrey LLP, says his firm has been offering defendant contingency fees for years, but clients rarely bite. "A lot of large corporations that are defendants don't want a lawyer to make a windfall," says Susman. "They'd rather pay by the hour than to take the chance for some lawyer to make them look silly."
A lawyer has to make a windfall for defense contingency fees to make sense.
Says Susman: "We're paid for results, not effort. But results aren't always great. You don't always win cases. You've got to have a recovery disproportionate to your effort. On the defense side, it's a very difficult sell."
Odom says the new law firm's methods could appeal to small and midsized companies filing smaller lawsuits. "The alternatives for clients with $10 million to $20 million cases are limited," says Odom. "We think we can get a leg up on that market."
Partner Schiffer cites a major slow-down in litigation work being sent to big firms as a sign of the changing times."I am convinced that the market wants to buy the type of services we are going to sell," says Schiffer.
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State bar will induct four into Lawyers Hall of Fame Friday - Inductees span most of state history
ERIC VELASCO, The Birmingham News
June 7, 2007
Lawyers from eras spanning most of Alabama's 188-year history will be honored Friday with inclusion in the Alabama Lawyers Hall of Fame by the state bar association.
The four inductees - William Rufus King, Thomas Minott Peters, John J. Sparkman and Robert S. Vance - contributed to the advancement of the law at the state, national and international levels, the Alabama State Bar said in a news release.
Two were champions of civil rights, and one was vice president of the United States.
"The Hall of Fame was established four years ago in order to spotlight significant contributions lawyers have made to the state throughout its history," Samuel Rumore Jr., a former state bar president and chairman of the selection committee, said in a statement.
"These individuals have demonstrated a lifetime of achievement that exemplifies the bar's motto, `Lawyers render service.'"
The four will be inducted in an 11:30 a.m. ceremony Friday at the Alabama Supreme Court building in Montgomery.
Here are some of their accomplishments:
King (1786-1853) helped draft the original Alabama Constitution in 1819. He was a U.S. senator representing Alabama 1819-44 and 1848-52, and served four years as its president pro tempore.
Between stints in the U.S. Senate, he was ambassador to France. He was vice president in 1853 in the administration of Franklin Pierce, but died after less than one month in office.
Peters (1810-1888) served in the Alabama House and Senate 1845-49, then spent six years on the state Supreme Court during Reconstruction, 1868-74. He was chief justice during his last three years on the court. Peters was an early proponent of equal rights for blacks and women.
Sparkman (1899-1985) is the author of the G.I. Bill of Rights that provided free education and lost-cost housing after World War II. He served in the U.S. House of Representatives 1937-48 and in the U.S. Senate 1949-79.
Vance (1931-1989) was an early opponent of segregation and a voting-rights advocate who practiced law in Birmingham and was chairman of the Alabama Democratic Party before he was appointed a judge on the 11th U.S. District Court of Appeals in 1977. He also is one of the few federal judges murdered while in office. Walter Leroy Moody was convicted of mailing a nail bomb to Vance's home; it killed the judge and injured his wife when Vance opened it on Dec. 16, 1989.
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Rove Named in Alabama Controversy
By Adam Zagorin, Washington Bureau, TIME Magazine
June 1, 2007
(NOTE: see fifth paragraph up from the bottom)
In the rough and tumble of Alabama politics, the scramble for power is often a blood sport. At the moment, the state's former Democratic governor, Don Siegelman, stands convicted of bribery and conspiracy charges and faces a sentence of up to 30 years in prison. Siegelman has long claimed that his prosecution was driven by politically motivated, Republican-appointed U.S. attorneys.
Now Karl Rove, the President's top political strategist, has been implicated in the controversy. A longtime Republican lawyer in Alabama swears she heard a top G.O.P. operative in the state say that Rove "had spoken with the Department of Justice" about "pursuing" Siegelman, with help from two of Alabama's U.S. attorneys.
The allegation was made by Dana Jill Simpson, a lifelong Republican and lawyer who practices in Alabama. She made the charges in a May 21 affidavit, obtained by TIME, in which she describes a conference call on November 18, 2002, which involved a group of senior aides to Bob Riley, who had just narrowly defeated Siegelman in a bitterly contested election for governor.
Though Republican Riley, a former Congressman, initially found himself behind by several thousand votes, he had pulled ahead at the last minute when disputed ballots were tallied in his favor. After the abrupt vote turnaround, Siegelman sought a recount. The Simpson affidavit says the conference call focused on how the Riley campaign could get Siegelman to withdraw his challenge.
According to Simpson's statement, William Canary, a senior G.O.P. political operative and Riley adviser who was on the conference call, said "not to worry about Don Siegelman" because "'his girls' would take care of" the governor. Canary then made clear that "his girls" was a reference to his wife, Leura Canary, the U.S. attorney for the Middle District of Alabama, and Alice Martin, the U.S. attorney for the Northern District of Alabama.
Canary reassured others on the conference call — who also included Riley's son, Rob, and Terry Butts, another Riley lawyer and former justice of the Alabama supreme court — that he had the help of a powerful pal in Washington. Canary said "not to worry — that he had already gotten it worked out with Karl and Karl had spoken with the Department of Justice and the Department of Justice was already pursuing Don Siegelman," the Simpson affidavit says.
Both U.S. attorney offices subsequently indicted Siegelman on a variety of charges, although Leura Canary recused herself from dealing with the case in May 2002. A federal judge dismissed the Northern District case before it could be tried, but Siegelman was convicted in the Middle District on bribery and conspiracy charges last June.
William Canary called the allegations "outrageous" and "the desperate act of a desperate politician." Terry Butts said, "I do not recall this telephone conversation — this whole story must have been created by a drunk fiction writer." A White House spokesman told TIME that since the case of former Governor Siegelman remained before the courts, it would have no comment.
Rob Riley said, "I do not recall making the statement attributed to me." He added: "Neither I nor anyone on our campaign staff have been involved...in a conspiracy to bring a criminal case against Don Siegelman." Lewis Frankling, who prosecuted Siegelman, said he did confer on several occasions with Justice Dept. officials in Washington, but that "nobody ordered me to bring this case, and we handled it just like any other."
Canary was appointed by President George H. W. Bush to serve in the White House as special assistant for intergovernmental affairs, and then named chief of staff of the Republican National Committee. Later in the 1990's he also worked closely with Karl Rove in a successful series of campaigns to get Republicans elected to Alabama's state courts.
In an interview with TIME, Simpson confirmed that the "Karl" cited in her sworn statement was Karl Rove. "There's absolutely no question it was Karl Rove, no doubt whatsoever," she said. She also said she has phone records to back up the date and duration of her phone calls.
Though Simpson's legal work primarily involved research for companies seeking federal government contracts, she says she also did "opposition research" on Siegelman as a volunteer in Riley's campaign in 2002. A lifelong G.O.P. supporter, she says she has long been friendly with Riley's son, Rob Riley, whom she met at the University of Alabama and worked with on various legal cases.
In her interview with TIME, Simpson said the participants in the conference call expressed growing concern that Gov. Siegelman would refuse to give up his challenge to the vote count. According to Simpson, Rob Riley said, "Siegelman's just like a cockroach, he'll never die, what are we going to do?" At that point Canary offered reassurance by citing Rove's news from Justice Department.
Simpson said she had long been troubled by the conference call conversation, and even consulted an official of the Alabama State Bar Association to determine whether she could disclose it publicly without violating her obligations as a volunteer working for the Riley campaign. She was told, she said, that she was free to speak of the matter.
Simpson said she grew more concerned about the matter after Siegelman's conviction last June. She says she told several friends about the conference call; one of them, Mark Bollinger, a former aide to a Democratic attorney general in Alabama and in the Alabama Bureau of Investigation, has given his own affidavit, obtained by TIME, swearing that Simpson had told him of the conference call and Rove's alleged statements.
The federal investigation of Siegelman culminated in a criminal prosecution that became public not long after Siegelman announced that he would run again for governor of Alabama in 2006. Partly because of the investigation, Siegelman failed in his bid for the Democratic nomination.
Siegelman, together with former HealthSouth CEO Richard Scrushy, was convicted on bribery and conspiracy charges and faces sentencing June 26. Lawyers for Siegelman and Scrushy told TIME they were considering whether to use Simpson's affadavit in expected motions to dismiss charges against their clients, or in some other phase of what is likely to be a protracted appeals process.
Siegelman was convicted of appointing Scrushy to a hospital regulatory board in exchange for a $500,000 contribution to a campaign for a state lottery to fund education. Defense lawyers have argued that Siegelman drew no personal financial benefit from Scrushy's donation to the lottery campaign, and they note that Scrushy had served on the hospital regulatory board under three previous governors, before Siegelman reappointed him. The reappointment, they have argued, offered little of value to Scrushy except more work.
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Georgia House Speaker Proposes Taxing Lawyers' Services
Andy Peters, Fulton County Daily Report
Along with hourly rates and hours billed, Georgia lawyers may soon have to add another column to their clients' receipts -- one to show the state sales tax.
House Speaker Glenn Richardson, R-Hiram, and his allies plan to push in next year's legislative session changes that would levy sales taxes, for the first time in Georgia, on professional-service providers -- from barbers and landscapers to accountants and lawyers.
The rate would be the current sales tax rate, which varies by local government, although the details of Richardson's proposal could change before the General Assembly debates it next year.
Many attorneys would end up passing on the higher cost to their clients, said Doraville sole practitioner James S. "Jim" Lewis, who practices criminal-defense and family law. That could hurt low-income clients who seek help on divorce or other routine matters.
"For folks in the lower-income levels, it's hard enough to get them to bring in more money," he said.
He said a visit to any courthouse in the area would provide evidence of how a sales tax on legal services would amount to a fortune in revenue for the state.
"Go to a big civil, non-jury day in Cobb or DeKalb or Fulton," Lewis said. "You'll see thousands of people waiting their turn to go to court. Those lawyers bill by the hour."
Consider in the city of Atlanta, Lewis said, where the sales tax is 8 percent. A lawyer who works an eight-hour day and charges $250 per hour would produce daily sales tax revenue for the state of $160.
"That's going to drive the cost of legal services sky-high," Lewis said.
Paul M. Talmadge Jr., president of legal recruiting firm The Partners Group, said the proposed tax "could well drive legal services to a competing metro area, like Charlotte or New York or [Washington] D.C., where there is no sales tax on legal services."
The State Bar of Georgia has not taken a position on the proposal, said Athens attorney J. Vincent Cook. However, Cook said, "there is little doubt in my mind that we will take a position" on the matter.
"We'll wait and see what the final bill looks like so we know what we're in favor of and what we're opposed to," said Cook, a partner at Cook, Noell, Tolley, Bates & Michael.
The sales tax on professional services would come as part of a proposal to abolish property taxes and replace them with a broader sales tax. Richardson's proposal hasn't been finalized.
The final version of the legislation has not been completed, said Clelia Davis, a spokeswoman for Richardson, who was the Paulding County attorney from 1989 to 2005. An initial proposal introduced in April, House Resolution 900, is being rewritten, she said.
Because Richardson's plan would eliminate property taxes, the lost revenue would have to come from somewhere else. Richardson's plan would eliminate virtually all sales tax exemptions, from an exemption on the sale of fuel used in raising pigs to an exemption on building materials used to construct a museum at Fort Benning in Columbus. Such exemptions cost the state about $10 billion yearly, according to a Georgia State University estimate.
The lost revenue would also be made up through the new tax on professional services.
Georgia would become one of only five states that, as of 2004, subjected legal services to sales tax, according to the Federation of Tax Administrators -- Delaware, Hawaii, New Mexico, South Dakota and Washington.
Alan Essig, executive director of the Georgia Budget & Policy Institute, said it's probably not a good idea to tax lawyers, accountants or other providers of professional services.
"Most economists think that's not good policy," said Essig, who echoed the comments of Lewis by saying a sales tax on lawyers would likely be passed on to consumers.
Essig said it may make sense to tax other types of "household" services, such as lawn care. It could even make sense to tax legal work done for individuals, such as preparing a will, but not tax business-to-business legal work.
"It's looking at each service individually, and not broad-brushing it," Essig said.
Essig cautioned that not all of the $10 billion that Georgia State University estimated is lost each year from sales tax exemptions is likely to be recovered. It's good public policy for some of the exemptions included in the $10 billion figure, such as a tax on raw materials used in manufacturing, to remain in place, he said.
Eliminating property taxes is almost certain to draw opposition from some public-education advocacy groups. School districts, as well as county governments, generate almost half their total funding from property taxes. If property taxes are eliminated, the state will gain complete control of local schools' funding, said Joe Martin, executive director of the Consortium for Adequate School Funding.
"Local systems would have no revenue sources and they would depend on whatever the state gave to them," said Martin, whose group is suing the state to increase funding for poor, rural schools. "I don't think people have thought through what this would mean."
Martin said Richardson and his Republican allies may be trying to pass into law a school-voucher system; conservatives favor vouchers as a way to give parents tax credits that can be used at private schools.
"If you move all school funding to the state level, then a voucher is much easier to implement," said Martin, who was an unsuccessful Democratic candidate for state school superintendent in 1998 and 2002.
Richardson 's plan may also draw the opposition of city and county governments.
"Our concern is that city officials would lose the ability to make funding decisions at the local level," said Amy Henderson of the Georgia Municipal Association.
The original version of Richardson's legislation included a provision that guaranteed local governments they would receive the same amount of revenue as before, except the revenue would be collected by the state instead of local governments. Richardson's plan would eliminate all county offices of tax commissioner, tax receiver and tax collector.
Richardson 's initial legislation also included a proposal for a 5.75 percent income tax and a 5.75 percent consumption tax. Those proposals won't be part of the final version, Davis said.
Richardson hired Arduin, Laffer & Moore to study tax reform and help write the legislation. Richardson paid the Tallahassee, Fla.-based economic consulting firm from the account of his political-action committee, the MMV Alliance Fund. One of the firm's founders, Arthur B. Laffer, was an economic adviser to President Reagan. Richardson plans public hearings to promote his plan, Davis said.
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Judiciary: Electing judges a conflict on its face – [Editorial]
The Jackson Clarion-Ledger (Miss.)
June 6, 2007
This year, there are no statewide judicial races on the election ballot, but across the 82 counties, citizens will be electing Justice Court judges, which is a sad joke.
In Mississippi, no law degree or any special knowledge - or even a college education - is required to be deciding the law.
State law lists the qualifications for Justice Court judge only as "a qualified elector, a resident of the county and district two years preceding the day of election, a high school graduate or its equivalent."
In other words, in Mississippi, one can be thick as a brick and a scoundrel to boot and decide the law. All it takes is willingness to be voted in. And, of course, the winners know, if they make unpopular decisions, regardless of the law, they can just as easily be voted out.
Not surprisingly, a study of more than 7,000 trials by Ball State University found that elected judges are more likely to rule in favor of the people who voted them into office (see: http://www.bsu.edu/news/article/0,1370,-1019-1048,00.html).
"Politicians are not neutral maximizers of the public good; they respond to incentives just like other individuals," concluded professor Alexander Tabarrok.
Business Week magazine in 2004 reported an interesting survey, as well, in which 46 percent of elected judges said campaign contributions influenced their decisions.
That doesn't say much for the way Mississippi selects its judges, or for the objectivity or professionalism of its legal system.
But, before people start chuckling, it should be noted that this farce of a way of selecting judges isn't limited to the lower Justice Courts.
Mississippi elects all its judges, including its highest posts of Court of Appeals and Mississippi Supreme Court. Nor is Mississippi alone.
Some form of popular elections for judges takes place in 28 states.
Mississippi is not alone either with new problems arising from it, as the nonprofit Justice at Stake Campaign described it: "A perfect storm of hardball TV ads, millions in campaign contributions and bare-knuckled special interest politics" entering the fray
(See The New Politics of Judicial Elections 2004: http://www.justiceatstake.org/contentViewer.asp?breadcrumb=3,570,633).
Reformers in state legislatures and legal organizations across America rightfully are rethinking the system, to reduce the role of money and political parties in the politics of selecting state and local judges.
Mississippi could - and should - be a leader in this.
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Judge lauds legislative action on public defenders
The Associated Press
June 2, 2007
NEW ORLEANS — Criminal Court Judge Arthur Hunter Jr., who has halted prosecution of more than 100 poor defendants, on Friday lauded the passage of a bill in the Louisiana House of Representatives aimed at boosting support of the state's indigent defender system.
"The court is 'cautiously optimistic' that much-needed indigent defense reform legislation will be passed by the Louisiana Legislature," Hunter wrote in a statement. "But whether the legislation will include adequate funding remains to be seen."
The public defender bill passed 100-to-1 in the House and is scheduled to be heard Tuesday by a Senate judiciary committee.
For months, Hunter has been battling what he sees as the indigent defender's inability to adequately represent the city's hundreds of poor defendants since Hurricane Katrina wrecked its criminal justice system.
Problems became glaring after the storm, when thousands of jailed pretrial inmates were scattered to prisons throughout the state. Most waited for months for any contact with a lawyer.
Before the hurricane hit, three-quarters of the defenders' office's budget was financed by traffic court fines. That revenue dried up after Katrina devastated the city in August 2005. A Justice Department study says the office needs $7 million to $10 million a year to operate.
In addition to staying the prosecution of 130 defendants, Hunter has ordered 20 prisoners in Orleans Parish Prison that have been unable to make bail to be released until they can be tried. The 4th Circuit Court of Appeal stayed the release, however.
"As of today, 164 indigent defendants do not have attorneys to represent them," Hunter says in his statement.
He reset those cases until July 6. Hunter said he had also notified 232 private attorneys for appointment to represent defendants. The vast majority do not have criminal law experience, however, he said.
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