Legal discounts offered to military
By Jenn Rowell, The Montgomery Advertiser
June 24, 2008
A former Air Force lawyer thought discounted legal services should be offered to military members in Alabama, so he made some calls.
Retired Lt. Col. George Schrader of Montgomery got the idea from the Military Officers Association of America. The national organization has a program in which lawyers volunteer to provide discounted services to military members.
Schrader wanted a similar program here, so he called the Alabama State Bar and proposed it.
"It's a win-win situation," Schrader said. "It's an opportunity for the lawyer to contact a client that he otherwise never would have."
This year, Alabama State Bar officials added the program, which offers a 25 percent discount to military members, as an option within the bar's referral service. So far, 133 of the bar's 339 members statewide have agreed to participate. Lawyers pay a $100 fee to participate in the program.
Shannon Knight, the program coordinator, expects the number of lawyers participating to grow.
She said that because the program is new, some lawyers might not have heard about it or might have overlooked it on their application forms this year. Knight has sent a letter to bar members informing them of the new program and how to participate.
When military members call the referral service, they'll be directed to one of the lawyers willing to offer a 25 percent discount to service members. If there isn't a participating lawyer in the service member's area, they'll be referred to the nearest attorney, Knight said.
Charles Moses, a Birmingham lawyer and president of the referral service committee, said the Alabama State Bar president and several board members also are participating.
"I think lawyers generally are very supportive of the military, and they feel it's an appropriate way to respect the service of our volunteer military," Moses said. "I believe it's a very positive program that we hope will be very useful to the military personnel."
So far, no service members have used the program, but word is spreading, Knight and Moses said.
"The main thing is getting more attorneys to join up, so we can give out more names to anyone who calls in," Knight said.
- - -
Cobb wants to streamline indigent defense
By Dana Beyerle, The Tuscaloosa News
June 15, 2008
Indigent defense was not on Chief Justice Sue Bell Cobb’s radar screen when she took office last year, but it quickly moved into view.
Cobb said she has been involved in indigent defense as a judge since the 1980s, but now that she’s the state’s top jurist, she’s looking at it from the standpoint of both judicial fairness and court administration.
“We have to be more accountable in representing the poor in criminal cases,” Cobb said last week. “Alabama is just one of a handful of states that has no statewide system demanding accountability of how dollars are spent.”
Alabama’s indigent defense system relies on local five-member appointed commissions overseen by the presiding circuit judge, or a majority of judges if there are three or more in a circuit.
Generally, counties in Alabama provide indigent defense in one of three ways — through a public defender’s office, like in Tuscaloosa County, by contracting with defense attorneys or through individual indigent defense attorneys who are either assigned cases or are chosen from a small list. The system also provides legal services for children who are in guardianship.
Tuscaloosa County Presiding Circuit Judge John England Jr., by virtue of his position, is on the local public defender’s committee.
He said urban counties like Tuscaloosa probably would do better with a public defender’s office.
“It makes the best use of a necessary expenditure, because our constitution requires every defendant subject to jail time to be afforded an attorney,” England said.
Cobb said she will propose legislation for the 2009 regular session of the Legislature that would create the Office of Indigent Defense Services and the Alabama Indigent Defense Commission. The office would be overseen by the commission.
Cobb said she believes an indigent defense office will bring uniformity to the hodgepodge system that this year will cost taxpayers about $70 million, up from $17 million in 1998, when there were 49,022 cases.
This year, it’s expected there will be 83,169 criminal indigent cases.
She also said she believes a statewide commission will save money.
“We want a cost-effective system, and I’m equally concerned about adequate legal representation,” she said. “Whether you have success or failure in a case shouldn’t depend on whether you have money.”
The state funds indigent defense through a tax and a General Fund appropriation.
Cobb said she believes the proposed legislation will be well-received by the Legislature and by the criminal defense bar. At least one legislator is receptive to the concept.
“It is a fact that indigent defendants must have access to legal representation if threatened with loss of liberty per the U.S. Supreme Court,” said state Rep. Marcel Black,
D-Tuscumbia, chairman of the House Judiciary Committee.
“Having a lawyer defending someone charged with a crime has the positive effect of keeping our law enforcement agencies playing within the rules and it touches all the bases when gathering and presenting evidence of one’s guilt,” said Black, who is a lawyer. “Though perhaps not popular with the general public, our criminal justice system cannot operate one way for those who can afford a lawyer and another for those who cannot.”
Keith Norman, executive director of the Alabama State Bar Association, said the bar has been grappling with indigent defense for at least the 20 years he’s been at the association.
“Right now, Alabama has no oversight of indigent defense,” Norman said. “It’s a hodgepodge. Some are appointed, some are public defenders and are some assigned.”
Stakeholders include the Alabama Criminal Defense Lawyers Association.
Melinda Austin, a Florence attorney, is immediate past president of the ACDLA.
“I’m concerned that adding another level of bureaucracy may increase costs and decrease the quality of services,” she said. “My biggest concern is it may take away local judges’ control and input over the system.”
Defense lawyers note that a dollar spent in a public defender’s office is not the same as a dollar spent by a DA; prosecutors have access to expensive police, forensic and expert witness help that are not part of their budget, while public defenders have to pay for forensics and hire their own experts and investigators out of their set fees.
The proposed legislation would eliminate the per-hour indigent defense fees — $40 for out-of-court services and $60 for in-court — and office overhead allowances, and set a flat fee of $85 per hour, with more for capital cases.
Tuscaloosa criminal defense lawyer Joel Sogol said $85 an hour is not enough but is better “than where we have been.” (Sogol generally does not take indigent defense cases.)
“On the other hand, any time you get a system that allows you to specialize in any area, you become an expert and your client will be able to benefit,” he said.
Austin said she believes the proposed system is an attempt to lower the $70-plus million annual cost.
“We’re trying to work with the chief justice to get something to protect indigents and protect their rights,” Austin said. “Until we can look at it as a quality control issue for competent defense, we’re never going to achieve what the constitution guarantees.”
Cobb said the goal is to provide a quality of justice “regardless of your economic circumstances.”
“I don’t think that anyone in Alabama wants an innocent person to go to prison,” she said.
- - -
Indigent defense – [Editorial]
June 19, 2008
State Supreme Court Chief Justice Sue Bell Cobb is preparing legislation that would establish a uniform system for appointing defense lawyers in criminal court cases.
Alabama's system - if it can be called that - of appointing lawyers to represent indigent defendants in criminal cases is a patchwork quilt of methods that can vary greatly in neighboring counties. Supreme Court Chief Justice Sue Bell Cobb says she wants to bring order and accountability to indigent defense and she is preparing legislation to create the Alabama Indigent Defense Commission, which would oversee the Office of Indigent Defense Services.
Cobb said her reason for sponsoring the legislation is twofold: to ensure quality counsel for the indigent and to bring uniformity and accountability to indigent defense costs.
Indigent defense will cost taxpayers about $70 million this year, which is an increase of about $50 million from 1998. It's expected that there will be more than 83,000 indigent criminal defense cases in Alabama this year.
Cobb expects to save the state money by creating a uniform system of appointing defense attorneys, part of which will be achieved by setting a flat fee for criminal cases of $85 per hour, and slightly more for capital cases. Not everyone believes that is a realistic figure, or that the state will save money, but establishing a system that enforces accountability is a step in the right direction.
Currently, there are several ways to appoint attorneys for those charged with crimes but who cannot afford a lawyer. Some counties have public defender offices, some have contract defense attorneys, and attorneys who take indigent clients on a case-by-case basis. In most cases, attorneys are appointed by the presiding circuit judge.
Cobb's bill should prove to be a source of considerable debate in the Legislature, where trial lawyers have significant sway over the fate of some legislation. But her bill deserves a fair hearing. The quality of justice is affected by the quality of legal defense, and some acountability is desirable.
- - -
Not making the grade – [Editorial]
The Birmingham News
Tuesday, June 24, 2008
THE ISSUE: In judicial ethics, Alabama scores poorly, but a few key reforms could change the state's reputation and grade.
Yet another study shows Alabama doing poorly, and yet another state official responds defensively.
But for those involved with the state Judicial Inquiry Commission, it may be the truth hurts. Help Abolish Legal Tyranny, or HALT, gave Alabama a D-plus on enforcing judicial ethics based on an evaluation in seven areas of judicial ethics: transparency, meaningful sanctions, consumer friendliness, online outreach, layperson participation, open financial disclosure and gift restrictions.
Alabama made an A in one category: The state is considered consumer friendly because there is no "gag" against individuals who bring complaints against judges. People who file complaints can speak publicly about those complaints, and some states don't allow that.
However, Alabama made F's in three of the seven areas: online outreach, open financial disclosure and gift restrictions.
Not surprisingly, Jenny Garrett, the executive director of the Alabama Judicial Inquiry Commission, disagreed with the D-plus grade.
It helps to have a little national context. Alabama wasn't at the very bottom of the survey. Overall, Alabama ranked No. 38, tied with Idaho, Colorado and Kentucky. Georgia, Louisiana and Mississippi in the Southeast ranked lower; Tennessee and South Carolina a little higher.
Only one state, Washington, had a B, and two more graded B-minus. In one category, gift restrictions, no state graded above a D, and only nine states did even that.
Most states permit judges to take gifts "with few limitations," the study said. That's a dangerous area to score poorly. HALT says special interests use "expense-paid trips to lavish settings in a thinly veiled attempt to lobby judges." The organization urges states to pass ethics rules with caps on what judges may accept from private groups - a good idea.
But just because a lot of states grade poorly doesn't mean Alabama should be graded on a curve.
Two other areas where Alabama flunked - online outreach and open financial disclosure - are troublesome as well. The state scored low because it doesn't provide a downloadable complaint form or much information on the Web. Garrett said a Web site upgrade is in the works and that a downloadable complaint form will be part of the improvement.
As for financial disclosures, Alabama requires judges to file them, but they are sealed. This keeps "critical information" away from litigants with cases before judges.
No doubt the legacy of disgraced former Chief Justice Roy Moore hasn't helped Alabama's reputation. But Moore's injury is more than reputation.
Under Moore, the Supreme Court in 2001 changed rules to allow judges accused of wrongdoing to get copies of the complaints against them, including the name of the person who filed a complaint.
Garrett admits that cut the number of complaints in half, and it especially affected complaints by lawyers. That's understandable, considering the lawyer might have to appear before the judge.
When Chief Justice Sue Bell Cobb was campaigning for office, she said she wanted to reverse that decision, and a court committee is looking at restoring confidential complaints.
With a few important reforms, Alabama could move up. But with continued inaction, state judicial ethics will stay on academic probation.
- - -
Ousted judge's future in practicing law uncertain
By DAVID FERRARA, Mobile Press-Register
June 15, 2008
Locked in a federal mental treatment facility, ousted Clarke County Judge Stuart C. DuBose may never again practice law in Alabama, a lawyer with the state bar said last week.
Meanwhile, as a team of judges handles DuBose's docket in three southwest Alabama counties, Gov. Bob Riley is preparing to find a person to fill the remaining 2cm HALF years of DuBose's term.
Even before his removal from the bench last week, the state bar tried to discipline DuBose. But the Alabama Supreme Court stopped that action while DuBose was suspended from the circuit that also covers Washington and Choctaw counties.
Now that DuBose has been removed from the bench, Tony McLain, general counsel for the state bar, said DuBose's law license could soon be revoked, even though he has a right to appeal the June 5 decision by the Court of Judiciary in which he was kicked off the bench.
"We will certainly be in the process of moving against that law license," McLain said Friday. "To be accountable to the other lawyers and the judges and the public, we need to consider pursuing that against him."
Narrowly elected in 2006 after a contentious Democratic Party primary race, DuBose has until July 7 to apply for a new trial. If he does and the request is denied, he would have another 42 days to appeal the ruling.
But even DuBose's own attorney, Shelby County lawyer Farley Moody, said a successful appeal would be a "leap."
DuBose also faces federal weapons charges in connection with allegations that he violated a restraining order his wife filed against him as part of their divorce.
In that case, authorities found a cache of ammunition and guns in his Jackson home, according to search warrant documents revealed in court records.
DuBose was ordered held in federal custody until his trial on the federal charges. During the hearing on DuBose's status as a judge, a psychologist testified last week that he showed signs of narcissistic personality disorder and had been taking various prescription drugs.
Authorities have said DuBose, who spent a month in a Pensacola drug treatment center earlier this year, must undergo a competency evaluation in the criminal case. As of Friday, DuBose was being held in a federal medical center in North Carolina, according to federal jail officials.
As long as DuBose remains behind bars, McLain said the state bar would not rush to revoke his license. Eight district and circuit court judges assigned from Monroe, Marengo and Mobile counties have heard DuBose's cases since he was suspended in January, according to Clarke County Circuit Judge Thomas Baxter.
Riley's legal advisor, Ken Wallis, said the governor could choose a Democrat to fill DuBose's former seat, but it wasn't clear this past week how soon that replacement would take office. Wallis added that the governor would likely wait until DuBose had exhausted the appeals process.
"I am aware that several names have been recommended," Wallis said. "There is a lot of interest in it because there has been so much controversy surrounding the circumstance."
- - -
Judges' relief remedy is slow
BRENDAN KIRBY, Mobile Press-Register
June 17, 2008
State court statistics show that Mobile and Baldwin counties could justify more judges, but the state has no money to hire them.
So Alabama's chief justice came up with a remedy: Send judges from quieter, rural counties to places where judges can barely keep up with their caseloads. Everyone connected to the criminal justice system seems to like the concept, but making it work hasn't been easy.
"We're feeling our way through this thing," said Mobile County Presiding District Judge Charles McKnight. "There's a lot more to it than having a lot of volunteers." District judges from Monroe and Hale counties have agreed to spend several days this summer hearing cases at Mobile Government Plaza while local district judges take time off.
It is decidedly less ambitious than Chief Justice Sue Bell Cobb's initial vision, which involved assigning judges from less-busy jurisdictions to work one day a week in places like Mobile County for 12-month stretches.
"Basically, your judges in Mobile aren't even taking vacations," Cobb said in an interview earlier this year. "That's unacceptable." The volunteer judges will not earn extra pay, but the state will cover their expenses.
Still, a number of difficulties have emerged:
Finding space and staff for the visiting judges;
Freeing up clerks from the clerk's office, which has its own manpower issues;
Finding another prosecutor to try the cases.
As District Attorney John Tyson Jr. said, "It's necessary to have a lawyer stand up and say, 'Ready for trial.'" Statistics from the Alabama Administrative Office of Courts show that Mobile and Baldwin counties have some of the heaviest caseloads in the state.
Preliminary figures for the fiscal year that ended in September rank Baldwin second and Mobile sixth for district court caseload, and eighth and 10th, respectively, at the Circuit Court level. Using a weighted formula that takes into account different kinds of cases and administrative duties, the state figures show that Mobile County District Court judges each spent an average of 118,889 minutes or more than 1,981 hours working on cases last fiscal year. The average figure for the county's circuit judges exceeded 1,580 hours.
"We just need two more judges. If we had three more judges which we're definitely not going to get that would put us in the average for the state," McKnight said.
Even in flush times, creating new judgeships is an arduous political task. And these are hardly flush times. Tax revenues have declined with a stagnating economy.
Cobb said the cost of a new district judge and staff run about $300,000; for a circuit judge and staff, the figure is $400,000.
"We can't continue to keep creating new judgeships," she said. "I figure we can save the taxpayers about $3 million by doing this." Keith Camp, a spokesman for the state court system, said 65 judges have agreed to travel elsewhere in the state to address heavy caseloads.
"It's obvious some counties have smaller dockets, like our county," said Monroe County District Judge George Elbrecht, who will spend two days in Mobile next month and three more in August. "I wanted to help."
Judges who pull temporary duty in Mobile likely will be handed the docket of a judge who is taking time off.
"I'm supposed to show up on a particular day and go to the fourth floor, and they'll tell me where to go," said Hale County District Judge William Ryan, who has agreed to work a couple of days in Mobile next month. "I won't know anything about any of the cases, which is really how it should be."
Ryan said he is eager to pitch in, but mindful of his own duties back home. In addition to his work on the bench, he said he serves on a number of state boards and committees in Hale County.
"Frankly, my schedule's pretty packed, too," he said.
Thus far, Mobile and Baldwin circuit courts have turned down the temporary additional judges. Camp said Baldwin County Presiding Circuit Judge James Reid made no request for assistance.
Mobile County Presiding Circuit Judge Charles Graddick said that his court's caseload is current and that none of the judges have complained about it. "I told her we're doing fine," he said.
Still, Graddick praised Cobb's efforts. "What she's doing is trying to bridge the gap, and she's come up with a great plan to do that," he said
- - -
Indefensibly shortchanged justice – [Editorial]
The Detroit Free Press
June 23, 2008
Scandalously low pay for court-appointed attorneys and a lack of state standards and
oversight have made Michigan a McJustice state -- with expedience stressed over
upholding a fundamental constitutional right.
The criminal justice system works when truth emerges from the adversarial efforts of a competent prosecutor and vigorous defense. It fails miserably when an outgunned and underpaid public defender is effectively encouraged to cut corners.
A just released report requested by the Legislature in 2006, examining public defense in 10 sample counties, should force an overdue fix.
"A Race to the Bottom," the title of the study conducted by the National Legal Aid & Defender Association and released last week by the State Bar of Michigan, found that defense attorneys routinely lack the time, training, investigators, experts and resources to prepare cases adequately. Others are appointed to cases for which they are not qualified. Many criminal defendants never speak to an attorney.
In a jab at sacrificing due process to speed, Ottawa County workers and attorneys refer to the time of district court arraignments as "McJustice Day," the report said.
Find a statewide solution
Fixing the problem will cost money, but very little compared to the $2 billion a year that Michigan spends on prisons. Getting it right at trial time is especially important today, when appeals courts and the Michigan Supreme Court practically rubber-stamp criminal convictions.
The system cannot be fixed by the hodgepodge of poorly funded county programs for indigent defense. Michigan must establish state standards and oversight of its public defense system -- and ensure uniform and adequate funding to counties.
As it stands, counties provide discount justice with either low-bid contracts or fixed compensation for exams, pleas, motions and other legal tasks, regardless of how many hours court-appointed lawyers spend on them. That practically forces attorneys to take more cases than they can handle or settle for pay comparable to fast-food workers.
Michigan ranks near the bottom -- 44th -- among states in per-capita spending on public defense. It is one of only seven states that provide no state money for public defenders at the trial level. Altogether, Michigan counties spend about $74 million a year on indigent defense. They would have to spend $50 million more to rise to the national average.
A matter of rights, not just money
From a purely fiscal standpoint, this is a mess almost begging for a class-action lawsuit that could cost the state plenty. But more basically, budget problems cannot be an excuse for curtailing constitutional rights. Louisiana is in no better shape than Michigan, yet legislators in that Katrina-ravaged state last year passed comprehensive reforms on indigent defense that include quadrupled funding.
"When people understand that one of our cherished constitutional rights is in danger, they find a way to come together and fix it," said David Carroll of the National Legal Aid & Defender Association.
His report compared the deficiencies of Michigan's system with the notorious Scottsboro Boys case in Alabama in the 1930s, the first right-to-counsel case in America. It involved nine black youths who were falsely convicted of rape and all but one sentenced to death. Eventually, after an international outcry, all were freed.
High profile exonerations of people such as Eddie Joe Lloyd, wrongly imprisoned for 17 years for rape and murder, expose cracks in Michigan's criminal justice system. But the National Legal Aid & Defender Association report shows flaws that are also wide and systemic. Ensuring that counties meet constitutional standards for indigent defense is primarily a state responsibility -- one that Michigan Legislatures and governors have, for decades, shamefully shirked.
- - -
To the Trenches: The Tort War Is Raging On
By JONATHAN D. GLATER, The New York Times
June 22, 2008
In a Washington ballroom bedecked with flags honoring explorers who overcame oceans and mountains to pursue international trade, Thomas J. Donohue congratulated the assembled modern merchants — a group of executives, lobbyists and lawyers — for challenging a more mundane adversary.
“It took guts, bravery and vision to get behind what must have seemed like an insurmountable task — taking on the powerful trial bar,” said Mr. Donohue, the chief executive of the United States Chamber of Commerce. “We have succeeded beyond our expectations.”
There were plenty of reasons for self-congratulation at the dinner, held earlier this month to commemorate the 10th anniversary of the chamber’s Institute for Legal Reform. Some of the best-known plaintiff-side lawyers in the country — Richard F. Scruggs, Melvyn I. Weiss and William S. Lerach — have all pleaded guilty to charges that they tried to manipulate the justice system. The very phrase “trial lawyer” has become associated with unadulterated greed; the Association of Trial Lawyers of America now calls itself the American Association for Justice.
But it is still too early to declare an end to the so-called tort wars, a decades-old conflict over the rules governing civil lawsuits. Corporate interests have won several potent victories, but trial lawyers continue to try to undo legislation restricting litigation and are pursuing new strategies of their own.
Businesses count among the victories federal legislation passed in 2005 that made it harder to file class-action lawsuits in state courts, where judges and juries were often perceived as hostile to business. In state courts, where most civil litigation plays out, the number of suits involving auto accidents, allegations of medical malpractice and the like fell steadily from 1995 to 2005, according to the National Center for State Courts. The Chamber of Commerce says the number of mega verdicts for more than $100 million dropped to 2 last year, from 27 in 2000.
Nevertheless, there are battles in individual states over judicial campaigns and legislative initiatives. The number of class-action lawsuits filed in 88 federal courts rose 72 percent from 2001 to 2007, partly because of that 2005 law. (Presumably, the number of class actions in state courts has fallen, although this data is hard to come by.) And while a study released in December by Towers Perrin, the consulting firm, found that total “tort costs” fell in 2006, it predicted that costs would rise as a souring economy prompts more lawsuits.
The chief executive of the American Association for Justice, Jon Haber, is skeptical of the results of spending by the Chamber of Commerce and its members to hobble lawsuits. And he defends the new name of his organization as reflecting what it does, rather than who its members are.
“The chamber’s political portfolio looks a lot like the portfolio of many Wall Street banks these days — a large number of bad bets that did not pay off but cost their members an awful lot of money,” Mr. Haber said.
He can rattle off recent victories for trial lawyers as quickly as he can list the goals his members hope to achieve. Voters in Washington State, for example, last year approved a bill that allows people to collect triple damages if an insurer unreasonably denies a claim.
In Colorado, an initiative to limit lawyers’ fees was answered with a barrage of proposals that would limit executive compensation, cap real estate sales commissions and raise the maximum amount of damages payable as a result of shoddy construction, among other things. All the initiatives were eventually withdrawn.
At the federal level, trial lawyers are pushing for a law that would make it easier for consumers to sue instead of having to submit to binding arbitration, as many contracts — for credit cards, for example — now require. The trial lawyers are also trying to make it harder for defendants to keep legal proceedings secret. “There are a number of things that are very much pro-civil justice that are starting to work through Congress,” Mr. Haber said.
Strikingly absent from debates over who should be able to sue whom, when and for how much is any discussion of the fairest and most effective way to make sure that true victims are appropriately compensated for injuries and that people without authentic injury are not compensated.
“That’s not the conversation we’re having,” because the only voices heard belong to advocates of one side or the other, said Robert L. Rabin, a law professor at Stanford. “Those advocates reflect advocacy interests — that is, either defense-side interests or plaintiff-side interests — rather than some overview of global fairness.”
Civil lawsuits seek to compensate victims of negligence or wrongdoing, like the unlucky passer-by hit by a falling piano. But how much of a penalty should such suits exact, above and beyond compensation, in order to deter wrongdoing? What about someone traumatized by the sight of the accident, or maybe a whole class of potential victims? And whom can these people sue — the movers, the piano’s maker, its owner?
The tort wars over such questions have waxed and waned for decades since the Industrial Revolution and the concurrent growth in industrial-scale accidents, said John Witt, a law professor at Columbia University.
“There are commencement addresses at law schools in the 1890s,” Professor Witt said, “where old railroad lawyers are lamenting the rise of a new class of oftentimes immigrant lawyers who don’t have access to the old ways of getting clients, and they strike out on this new business model” of actively seeking clients and charging them a fee that is a percentage of whatever was won in court.
The fight to change tort laws has developed into a big business in itself, with plenty of people invested in keeping the battle going. Neither Mr. Haber nor Mr. Donohue would say flatly that his side was winning. Doing so would make it harder to lure contributions — a point made by people on both sides of the debate.
Officials at the Institute for Legal Reform, the chamber unit, would not specify how much it spends annually on media and publicity campaigns, except to say it’s in the millions. And many organizations, nationally and in the states, lobby on both sides.
But the chamber itself, which represents millions of businesses of all sizes, is the biggest spender on the lobbying. In 2006, it spent $72.7 million, according to the Center for Responsive Politics, a nonprofit research group that tracks money in politics. On the trial lawyers’ side, the American Association for Justice spent $8.3 million that year.
Those numbers do not paint a complete picture, though. For years, business lobbyists say they focused on getting favorable legislation passed. But the restrictions enacted often proved vulnerable to legal challenges — and in states that elected judges, trial lawyers were historically more active in contributing to judges’ campaigns.
Business advocates needed to adjust their thinking, said Steven B. Hantler, chairman of the American Justice Partnership, another organization that is seeking to change the civil justice system in opposition to the trial bar.
“If you were to ask a corporate lawyer, when does the litigation process start, the corporate lawyer would say, when the lawsuit is filed,” said Mr. Hantler, a former head of the chamber’s legal reform institute. “The trial lawyer would say, not at all. It starts when judges are appointed or judges are elected, and when laws are made.”
As an assistant general counsel at the former DaimlerChrysler, Mr. Hantler was ordered by Robert J. Eaton, then co-chairman, to come up with a way to help shield from legal challenge any new laws curbing litigation.
“I remember sending Bob an e-mail shortly after the Ohio Supreme Court — this must be in 1999 — struck down tort reform legislation,” Mr. Hantler recalled. “Within an hour and a half, I was summoned to his office.”
Mr. Hantler told his boss that focusing on legislation was not enough. Mr. Eaton then instructed him, Mr. Hantler said, to develop a comprehensive strategy for changing the law.
On DaimlerChrysler’s dime, Mr. Hantler convened a meeting in the Washington offices of Gibson Dunn & Crutcher, a law firm. Among those present, Mr. Hantler said, were Theodore B. Olson, a partner at the firm who was later named solicitor general; Mike Murphy, who was a top strategist for John McCain’s presidential campaign in 2000; Clark S. Judge, a former speechwriter for Ronald Reagan who went on to the White House Writers Group, a communications firm; and Robert H. Bork Jr., who is the son of the former Supreme Court nominee and has his own firm, now called the Bork Communication Group.
They came up with what Mr. Hantler described as a multi-pronged strategy, involving advertising aimed at voters picking judges and continued lobbying of lawmakers. This “demonstration project,” as Mr. Hantler called it, was successful enough that the Institute for Legal Reform has expanded it over the years. At the same time, businesses have become more active in state supreme court judicial campaigns and, in the 2006 election cycle, gave twice as much as lawyers did, according to the National Institute on Money in State Politics. (In previous cycles, sometimes companies gave more, sometimes lawyers gave more.)
To help deliver a pro-business message, advocates have hit upon a ranking system. One list ranks “judicial hellholes,” as compiled by the American Tort Reform Association, and another identifies those states deemed by corporate general counsels to be most and least friendly to businesses. (That list comes from the Chamber of Commerce.)
In Mississippi, which received the worst ranking on the chamber’s list, advocates of limits on lawsuits made a special effort. In 2002 and 2004, state lawmakers passed legislation that, among other things, capped how much plaintiffs could recover in punitive damages and in non-economic damages — compensation for pain and suffering, for example.
But Lance L. Stevens, a Mississippi lawyer and former president of the state’s association of trial lawyers, said that even after the changes to the tort laws, the state has moved up in the ranking by only a few spots. General counsels at big corporations are not critical of Mississippi because of its legal system, he said. “It is the corporate lawyers for the Fortune 500 companies expressing their general disgust for Mississippi and their mistaken belief that we are culturally retarded.”
Lisa Rickard, president of the chamber’s Institute for Legal Reform, said that the new laws limiting lawsuits in Mississippi had not been on the books long enough to have more of an effect. “It takes a long time to come out of it,” she said.
Corporate executives say they want limits on non-economic damages in order to reduce unpredictability in jury verdicts. But the caps hurt the very people who most need help — low-income people who sustain injuries, Mr. Stevens said. People who earn a lot of money can claim significant lost income as part of their injury. The unemployed, children, the elderly or anyone else with little earning potential stands to recover less for the same injury than someone in the work force. Plaintiffs’ attorneys often get a percentage of the amount awarded to a client, so the limits mean they have a greater incentive to sue on behalf of a rich injured victim than a poor one.
“I have not filed a lawsuit for a child or a stay-at-home mom in a medical malpractice claim since 2002, because they regrettably lack economic value in the tort reform scheme” now in place in Mississippi, Mr. Stevens said.
At the federal level, legislation making it easier to move class-action lawsuits out of state courts was the major achievement for business advocates. They wanted to prevent lawyers from filing nationwide class actions in courts in counties, like Madison County in Illinois, that were perceived as hostile to corporate defendants.
But all of the consequences of that law, passed in 2005, are not yet clear. Although the number of lawsuits that defendants shifted to federal courts rose after the law was passed in 2005, a report released in April by the Federal Judicial Center, a research and education agency created by Congress, found that the number of such shifts has since fallen. On the other hand, the number of class-action suits filed initially in federal courts has risen. And no one has reliable data on the total number of class-action suits filed in state courts.
Plaintiff-side lawyers are innovating. Some firms are looking to courts outside the United States.
“If, for example, you have a company that defrauds its shareholders, shareholders around the world who invested in that company in any market should have the same rights to recover,” said Michael D. Hausfeld, partner at Cohen Milstein Hausfeld & Toll, which has opened an office in London and is allying with law firms in several countries. While the firm itself is not lobbying for legal changes to make it easier to sue in foreign courts, Mr. Hausfeld said, “we are involved with others who are doing that.”
So, despite some very high-profile casualties, the tort wars aren’t over. They may just be going global.
- - -
Alabama needs to flee 'tort purgatory' – [Editorial]
The Mobile Press-Register
Tuesday, June 24, 2008
ALABAMA STILL has some work to do on legal reform.
Fortunately, the state no longer carries the charming designation of "tort hell." Reform measures passed by the Legislature in the late 1990s slightly improved the state's legal climate, raising it to the level of, well, let's call it tort purgatory.
But Alabama's courts remain a most inhospitable place for businesses. Year after year, Alabama sits near the bottom of the U.S. Chamber of Commerce's ranking of state liability systems. In its 2008 report, the national chamber's Institute for Legal Reform ranked Alabama 47th, ahead of only Mississippi, Louisiana and West Virginia.
The report is based on a survey of corporate lawyers. Each state is ranked in 12 major areas, including overall treatment of tort and contract litigation, treatment of class-action lawsuits, punitive damages, and judges' impartiality and competence.
Some may wonder: Why do corporate lawyers' opinions of the Alabama courts matter? The short answer is that they can influence some of the key decisions of the businesses they represent, such as where those companies locate or choose to do business.
According to the chamber, 63 percent of the senior attorneys interviewed for the survey said the litigation environment in the states affects these important business decisions.
So the governor, state lawmakers and economic development officials would do well to pay attention to Alabama's low rating in the chamber survey. They also need to be thinking about how to improve it.
The state hasn't gone far enough in limiting punitive and non-economic damages. This isn't just an abstract observation based on the opinions of corporate lawyers. It's backed up by actual cases such as the wrongful death suit in Baldwin County that produced a staggering $50 million jury award last year.
Another obvious area of concern is the corporate attorneys' damning assessment of the competence and impartiality of Alabama judges.
Relatively few of those surveyed thought the state's judges were clueless about the law or outrageously biased. However, a large percentage gave the judges a mediocre "C" for their performance on the bench.
If mediocrity in fact does pervade the bench in this state, it may have something to do with our system of electing judges. Judicial elections require judges and would-be judges to raise money from big-dog interest groups and then run campaigns that sometimes degenerate into name-calling and appeals to the lowest common denominator.
These contests inevitably create the appearance — if not the fact — of judicial bias. They also tend to favor the best politicians. The judicial candidates who make the best politicians may or may not be the best jurists.
Against that, the Press-Register repeats its call for Alabama to adopt the Missouri system of judicial appointment and retention. Under the Missouri plan, the governor makes judicial appointments by choosing from a list of candidates selected by a blue-ribbon committee. The appointed judges later stand for election in an up-or-down retention vote.
We believe that if Alabama adopted the Missouri plan it would enhance the credibility and independence of the state's judiciary. It almost certainly would improve the overall quality of the Alabama bench.
With help from the Legislature, Alabama has climbed out of tort hell. Now lawmakers need to take steps that would at least move the state toward the middle of the pack in the U.S. Chamber's annual survey.
- - -
State gets D+ in judicial ethics
Eric Velasco, The Birmingham News
Monday, June 23, 2008
Alabama's system of enforcing judicial ethics received poor marks in a report card recently issued by the national watchdog group HALT.
HALT, or Help Abolish Legal Tyranny, gave Alabama an overall grade of D+ and ranked the state 38th in its 2008 Judicial Accountability Report Card.
The Washington-based legal reform group issued failing grades for not requiring judges to publicly disclose potential financial conflicts and for putting few limits on receiving gifts.
HALT said the report was the first comprehensive nationwide study of systems used by states to police judicial ethics. Alabama was one of 16 state and federal jurisdictions with overall grades below C.
The survey said the procedures and investigations by the Alabama Judicial Inquiry Commission are not transparent enough, and the system lacks meaningful sanctions.
"Alabama's system of judicial oversight gives too many judges a free pass," Suzanne M. Blonder, HALT's senior counsel, said in a statement. "We hope that Alabama's chief judicial officers will work to transform a mechanism marred by secrecy into a system dedicated to upholding the integrity of the judiciary."
Jenny Garrett, executive director of the Alabama Judicial Inquiry Commission, said she strongly disagreed with HALT's assessments and Blonder's comments.
"Alabama has always been considered to be in the forefront of judicial ethics," she said. "This commission is very diligent in following the rules of procedures promulgated by the Alabama Supreme Court and the state Constitution."
The commission, however, believes some of the rules it must follow have hurt the system's integrity, Garrett said.
Under the leadership of then-Chief Justice Roy Moore, the state's high court changed rules in 2001, allowing accused judges to receive copies of complaints against them. The information included the name of the person who filed the complaint.
"Our filings of complaints dropped in half," Garrett said. The most drastic drop was in complaints by lawyers, she said.
A court committee is now considering restoring complainant confidentiality.
Alabama's Judicial Inquiry Commission receives and investigates complaints filed against judges and justices, and recommends whether formal charges should be filed.
Those charges are considered by a nine-member Court of the Judiciary, which can suspend, remove or otherwise censure a judge.
One of the court's best-known decisions was when it ousted Moore as chief justice in 2003 for defying a federal judge's order to remove his Ten Commandments monument from the Supreme Court building in Montgomery.
HALT gave Alabama a high mark for what the group called "consumer friendliness" because the state does not ban people from speaking publicly about complaints they file against judges.
But HALT criticized the Judicial Inquiry Commission because its Web site does not have complaint forms to download.
Garrett agreed a downloadable form was needed, and said a Web site update is in the works. She said all information a complainant needs to know is listed online, mostly in the commission's annual reports.
Other issues cited by HALT include the fact that the commission does not release information about complaints until it files formal charges.
In 2005, the latest year for which statistics are available, the commission received 171 complaints, conducted 26 investigations and issued formal charges in one case.
The state requires judges to file financial disclosure reports, but the state Constitution allows them to be sealed.
"Concealing this critical information prevents litigants from having the opportunity to determine whether the judge presiding over their case has a conflict of interest," HALT's Blonder said.
Few restrictions are placed on judges about accepting gifts, HALT said.
"Alabama's laws unfortunately include massive loopholes that allow members of the judiciary to be wined and dined on the corporate dime," Blonder said.
Founded in 1978, HALT bills itself as a public-interest organization working to improve access and accountability and reduce costs in the civil-justice system.
- - -
Analysis: Law schools growing, but jobs aren't
By JUSTIN POPE, The Associated Press
June 17, 2008
To hear many students tell it, law school is a guaranteed ticket to a well-paying career. So a recent milestone must have sounded like good news.
The United States last week became the world's first nation of 200 accredited law schools, as the American Bar Association gave provisional approval to two North Carolina institutions.
In other countries, it's much harder to become a lawyer. In the United States, the doors are open and getting wider. The 150,000 students enrolled in law schools last year were an all-time high. So adding more slots means even more avenues of opportunity, right?
On closer inspection, however, the economics of the "more is better" argument for legal education don't necessarily hold up.
It's the numbers at the top that get all the attention: At the largest law firms, median starting salaries were $145,000 last fall, according to NALP, an organization that tracks law placement.
But many students don't realize at first that the high-paying law firms recruit almost exclusively at institutions ranked in the top 15 or so. Overall, the median salary for new lawyers is $62,000. For public interest law jobs, new lawyers can expect about $40,000.
Meanwhile, the average amount students borrow to attend a private law school surged 25 percent between 2002 and 2007 to $87,906, ABA figures show. For public law schools, borrowing averages $57,170.
"I think we have this fundamental disconnect between images of lawyers in the popular media, in the courtroom dispensing justice, where everyone seems prosperous and well paid," said William Henderson, an Indiana University-Bloomington law professor who studies the job market. "The reality is for a lot of people, law school is a route to trying to start your own private practice, and that's a very crowded business right now."
Vichet Chan, who received his law degree from Catholic University in Washington, D.C., in 2007 has been looking for work ever since. He recently moved back in with his parents in West Virginia to save money. He owes about $250 a month in interest on student loans. If he gets a job, he will lose his hardship deferral and will owe about $1,000 a month.
"The thing is companies want experience from young lawyers, but it's hard to get the experience," Chan said.
One symptom of the surplus is the rise of so-called "contract attorneys" -- essentially temps with JDs (the doctor of law degree). They work for roughly $20- to $40-an-hour on often monotonous tasks, like reviewing documents, that law firms outsource. A blog called Temporary Attorney even chronicles the mind-numbing assignments, verbal abuse and poor working conditions that include cockroach-infested, un-air-conditioned rooms with blocked exits and no breaks allowed.
Chan has been offered contract work in Washington but is reluctant to move back because -- as usual with contract work -- there are no guarantees it will last more than a few weeks.
Regardless, universities continue to build law schools.
With provisional accreditation, Charlotte College of Law and Elon University were Nos. 199 and 200. Nine others operating share that status. And at least 10 new ones are in the works nationwide, The National Law Journal recently reported, in states including Connecticut, Pennsylvania and California.
In New York, home to 150,000 lawyers (the most of any state), legislators recently appropriated more than $50 million to develop two new public law schools and one affiliated with St. John Fisher College, a private school. Some leaders of the state's 15 existing law schools were dumbfounded.
"There's no question that we simply have a glut of law schools," Makau Mutua, interim dean of the University at Buffalo Law School, told The Associated Press. He called state support for a private law school "mind-boggling."
For universities, a new law school is a lot more attractive financially than, say, spending money to make sure more undergraduates complete their degree within six years (national average: 57 percent).
Law schools have big classes, and don't need to provide much financial aid, because students are expected to borrow the money they need.
The case for some new law schools is stronger than others, and Gene Clark, who leads Charlotte College of Law, makes a pretty strong one.
Charlotte is the largest city in the United States without a law school, he says, and fast-growing North Carolina has the fewest lawyers per capita of any state.
Clark says his institution fills an important gap, serving underrepresented groups and providing a flexible schedule for working adults. While the market for traditional lawyering jobs is mixed, he says, it's strong in other fields for people -- law-enforcement officers, entrepreneurs -- with legal skills.
Finally, Charlotte College of Law is a for-profit institution. Unlike several law schools in the works, it isn't taking public money. It will have to offer students good results, or it will go under.
Some reasonably note that students should do their homework about job prospects. If they think they can be successful, law schools should give them that chance.
The problem is that law schools, obsessed with rankings, have been less than straight with students about what they can expect. Too many stats are self-reported. Henderson's research has found evidence of "massive exaggeration" by law schools when they report what graduates are up to.
The methods that law schools choose to collect salary info just happen to be ones that underreport low earners. The figures for what percentage are employed within nine months often say nothing about whether those graduates are using their law degree. They could be taxi drivers with JDs -- and $100,000 of debt.
"If we really started unpacking these numbers," Henderson said in an interview, "we would see some really unattractive accounting how law schools classify their graduates. It would be borderline scandalous."
It's time, he argues, to send in the accountants, to audit what law schools advertise and make sure everyone is reporting numbers the same way. Only then can customers make an informed decision about whether law school will really be a good investment.
- - -
Fla. Bar promises help for attorneys facing clogged courts, tight budgets - Incoming President Jay White III outlines priorities for his term
By Paul Brinkmann, South Florida Business Journal
June 20, 2008
The state's budget crisis and sputtering economy dominate conversation at the annual conference of the Florida Bar this week in Boca Raton.
"The state budget deficit is significant and is going to have an impact on us and the citizens of Florida," incoming President Jay White III said in an interview.
White is trying to assure the state's 84,000 lawyers and judges that the Bar is working for them during a tough time. The state is cutting the judiciary's budget, even as courts are clogged with foreclosures and aftermath of the housing and mortgage crisis.
The help may come in the form of lobbying for more state funding, less travel, and more teleconferencing and technology to ease costs.
Whether the Bar succeeds could impact local businesses that are navigating the courts and other legal processes. One of the major problems associated with foreclosures is simply the time to get a hearing - up to six months, in some cases.
White, of West Palm Beach, is laying out his priorities:
Address budget issues and court funding through conversations and lobbying the state Legislature. A possible solution would be a dedicated source of funding, instead of annual requests from the Legislature.
Improve delivery of services and continuing legal education to the organization's members.
Improve technology and virtual education.
Continue to develop and implement programs to help members practice law and perform their profession in the most effective way.
Establish a new emphasis on mentoring, with a new program to have experienced Bar members introduce new members.
Monitor the unparalleled change expected in the Florida Supreme Court, as Gov. Charlie Crist anticipates nominating four new justices.
Continue to support more minority attorneys and diversity within the Bar.
Cuts could limit access to courts
White said cuts facing the state court system are "unprecedented" and could severely limit access to the courts, while budget issues and the state of the overall economy will make it hard for both judges and government attorneys to participate in Bar activities.
The travel budget for judiciary committees might be hit hard, prompting White's call for more teleconferencing and videoconferencing.
White, of Richman Greer Weil Brumbaugh Mirabito & Christensen, is the fifth attorney from that firm to serve as head of the bar.
"One of the reasons I came here is because I knew they had this tradition and supported leadership of this type," White said. "This is basically a full-time job, if done right."
White said he would continue to build on the Bar's services to small law firms, such as providing basic research tools.
After White, Fort Lauderdale attorney Jesse Diner will take over, extending the South Florida leadership to three terms.
DuBose should not appeal – [Editorial]
June 08, 2008,
THE COURT of the Judiciary has acted appropriately by removing Clarke County Circuit Judge Stuart DuBose from the bench. Now, it's up to Mr. DuBose to let Gov. Bob Riley appoint his replacement.
Given the overwhelming evidence of Mr. DuBose's outrageous behavior in and out of court, the Court of the Judiciary didn't have any choice but to boot him from the bench. If he appeals, appointment of his replacement could be delayed several months.
Granted, Mr. DuBose has the legal right to ask for a new trial and, if denied, appeal the decision of the Court of the Judiciary.
However, there's no doubt that Mr. DuBose acted inappropriately on a number of occasions — even his defense lawyers didn't dispute his improper actions. It's unlikely he could ultimately win by drawing out the legal proceedings any further.
Indeed, an appeal would needlessly delay getting his replacement on the bench, so the courts of Clarke, Choctaw and Washington counties can get back to normal.
Mr. DuBose faced 60 ethics charges stemming from violations of the Alabama Canons of Judicial Ethics. Most of the charges related to his behavior on the bench, though at least one incident occurred while he was an attorney in private practice. The court found that Mr. DuBose violated all or part of four prohibitive canons in the code of ethics.
Moreover, the former judge faces a criminal charge for carrying a weapon while under a restraining order, which had been issued to protect his wife.
Continuing to fight the ethics charges will only distract Mr. DuBose's attention from what are apparently serious personal problems. His attorney argued at trial that Mr. DuBose suffered diminished capacity and impaired judgment. If that's true, it's reason enough to remove him.
Public trust in the judiciary rests on the exemplary behavior of judges. Mr. DuBose has discredited himself and embarrassed his profession by displaying bias in the courtroom and erratic behavior in general.
The Press-Register editorial board previously called for Mr. DuBose to resign from the bench. He did not. Now he has another chance to do what's right: Step aside and let a new judge be appointed.
- - -
Budget cuts threaten Georgia public defenders
By GREG BLUESTEIN, The Associated Press
ATLANTA - Georgia's statewide public defender system was created five years ago partly to stave off a costly legal battle, but critics fear mounting budget shortfalls could lead to exactly the kind of challenge they sought to avoid.
The council's decision to abruptly close a 21-member office at the end of the month could put 16 lawyers out of a job and leave 1,850 indigent defendants in the lurch. It's also raising concerns that support for the ambitious public defender program is starting to crumble.
The system's director, Mack Crawford, said the cuts were necessary because of flagging support from state lawmakers. A growing number of critics, though, worry that the cuts could have lasting consequences. Fulton County Chief Judge Doris Downs went so far as to say it could create a "legal crisis."
It's a crossroads of sorts for the statewide public defender system, which was created in 2003 at the urging of judges to replace the patchwork of systems across Georgia's 159 counties. They were particularly concerned that some were contracting indigent defense cases to attorneys with little experience or knowledge of criminal defense.
Now some of the advocates who fought to create the system say the cuts could be inviting a legal challenge.
"I'm all for being frugal and politically astute, because public defender programs have to do that," said Bright. "But you can't be irresponsible and there are constitutional lines you can't cross. And there's no question those lines have been crossed."
Since it started in January 2005, the public defender system has struggled to win the full support of state legislators. Funding for the system has dropped from $42 million in 2005 to $35 million this year.
That's forced some belt tightening. Some 41 staffers were fired amid the first round of cuts in May 2007, and Crawford warned he would have to furlough hundreds of staffers until a fresh infusion of cash came in this March.
The latest flashpoint involves the 21-member Metro Atlanta Conflict Defender Office, which handles multi-defendant cases. Downs on Monday warned that the closing was "irresponsible" and such a move needed to be more carefully coordinated.
Crawford said he was forced to close the office at the end of the month because the council only received $5.4 million from state lawmakers for the next fiscal year. That's a drop from the $9 million it spent last year on conflict cases throughout Georgia.
"We've been told repeatedly, 'You need to live within this budget,'" said Crawford, who said he would work with Downs to figure out ways for the defendants to be covered. "There will be no compromise for the representation of these clients."
It's far from the last of his financial problems. Crawford said that counties have started to limit the amount of financing they throw in the pot, and he said he was warned the system could face another $4 million in cuts over the next two years.
"We're fixing to have to juggle quite a bit," he said.
For now, the conflict office is in a bit of a limbo. Although Crawford's already notified them of the closing, the system's 10 council members voted unanimously on Tuesday to wait to make a final decision until a June 20 meeting.
The brief delay, though, is of little solace to some of the public defender system's frustrated supporters.
"I'd rather go down fighting for indigent rights. I'm having a problem to keep going along to get along," said Superior Court Judge Mark Anthony Scott, a member of the council. "We've got to draw the line."
- - -
Public defender system out of control – [Op-ed]
By Preston Smith, Atlanta Journal-Constitution
The Georgia Legislature created a new statewide public defender system in 2003 to fulfill its constitutional obligation to provide an adequate criminal defense for indigents. However, there is a raging ideological debate between advocates and taxpayers over the meaning of an "adequate defense" that dramatically impacts the policy, structure and funding of the system.
Unfortunately, the Public Defenders' Council has used its budget to usurp the policy-making authority of the Legislature by driving up the system's costs and providing the best defense that money can buy. This limits the system's availability and effectiveness and makes death penalty cases like Brian Nichols' prohibitively expensive.
Since its inception, the state's contribution has risen from 10 percent to approximately 40 percent of the total costs. Total expenditures for indigent defense in Georgia have reached $107 million, almost double the amount spent in 2000.
The recent downsizing of staff is not indicative of the failure of the Legislature to fund a system. To the contrary, it is evidence that the advocates have overbuilt a system which does more than required by the statutes.
The Council has built a system around the concept of maximizing the expenditure of available money rather than creating one that efficiently delivers the services called for by the Legislature. After perennially busting its budget, the Council manufactures a crisis and returns to the Legislature with threats of dire consequences if it does not receive additional funds. This strategy has the effect of forcing elected officials to increase funding or face a complete loss of a public service. It has resulted in a dramatic budget growth as compared with other state agencies.
Since 2005, state funds to the Council have increased 36 percent. In comparison, state funds to the Department of Human Resources increased 23 percent.
During the last legislative session, the Senate conducted a "zero-base budget" to determine the level of funding required for the system based upon what is mandated by statute. Even after repeated requests for the Council to produce a ground-up budget to justify their spending, they still refuse to do so, choosing instead only to criticize the Legislature without offering any alternative.
The Council and its staff have consistently misinformed the Legislature and the governor's office.
Although they now acknowledge their mistake, the Council made a decision to declare a conflict of interest in a massive number of cases and outsource those cases to private attorneys, who bill the state by the hour for their services.
In fiscal year 2008, the Council came to the General Assembly with a midyear budgetary shortfall of $3.6 million. The Council very publicly insisted that this was due to the more than 9,045 pipeline "conflict" cases. While the Council was successful in convincing the executive branch and House of Representatives that these funds were needed, the Senate insisted on verification. Such requests went unanswered.
Now we discover, and they admit, that the number of so-called pipeline cases was inflated by more than 100 percent to justify additional spending of taxpayer money. In reality there are currently only 4,430 cases in the pipeline. This was a result of 4,595 cases that were disposed of by the courts but continued to be maintained in their case management system, which tallies the number of "active" cases.
These cases have ballooned their budget largely because the cost per case for private appointed counsel in non-capital felony conflict cases has increased from an average of $367 in 2005 to more than $1,000 today. The Council attributes the increase in costs to the poor internal cost containment strategies. And unlike the previous system, since the taxpayers are picking up the tab, private attorneys do not have to factor financial considerations into their case strategy and decision-making.
Additionally, we are now told that certain "conflict" attorneys —- those whose representation of a defendant is characterized by the Council as having a legal conflict in a multi-defendant case —- have been bilking the state through their billable hours submitted to the state for reimbursement. I have received one report that an assistant resigned due to the unethical billing practices in her office. One attorney is being criminally investigated for this fraud and others have unusual billing practices showing up in the audits. Another attorney reportedly billed the state more than 26 hours in a single day, which is difficult to justify even during daylight-saving time.
The fact that lawyers are being investigated and other offices are experiencing layoffs is the natural result of the mismanagement I have been consistently warning about. It is undeniable that this system needs a sharp eye overseeing its management. Left unchecked, it will continue to grow into another unaccountable, burgeoning state bureaucracy, and the taxpayers will be left holding an empty bag.
State Sen. Preston Smith (R-Rome) chairs the Judiciary Committee.
- - -
Attorneys for Dade's poor vow to spurn most felony cases
By SUSANNAH A. NESMITH, The Miami Herald
June 3, 2008
The Miami-Dade Public Defender's Office plans to begin turning away thousands of cases in the coming weeks, arguing it is so short-staffed and underfunded that attorneys can't effectively cover their assigned cases.
''We're dancing as fast as we can. We can't keep this up. We don't have any alternative,'' Public Defender Bennett Brummer said Monday, noting that his attorneys are required by the Constitution to provide adequate representation for indigent defendants.
Brummer's plan: Refuse most felony cases. The office will continue to take cases in juvenile and misdemeanor court and the most serious felony cases -- first-degree murders and capital sexual batteries.
Broward Public Defender Howard Finkelstein is considering a similar measure.
''No public defenders office can provide effective assistance because we are overwhelmed with cases and have inexperienced lawyers and have high turnover,'' Finkelstein said. ``There is a line as public defenders we cannot walk across. The judicial system is crumbling.''
Brummer blames state legislators for creating the problem.
''These people have a choice as to how much conduct to criminalize,'' he said. ``They should be living within their means, too. They can posture and be tough on crime without regard for their ability to support the courts that are necessary to process their cases.''
But state Sen. Victor Crist, chair of the Justice Appropriations Committee, said Brummer is grandstanding ``because the cuts weren't that severe and they can find better ways to deal with them.''
''We made sure that everyone in the budget was funded at levels that we knew they could operate successfully at and do the jobs they are constitutionally required to do,'' Crist said.
The public defenders' offices represent indigent defendants who can't afford to hire private attorneys. The Miami-Dade staff of 177 trial attorneys handles some 100,000 cases every year.
Miami-Dade State Attorney Katherine Fernández Rundle was surprised by Brummer's plan.
''We have not received any official notification of this plan,'' said spokesman Ed Griffith. ``Frankly, such a position would be too absurd to contemplate at this point.''
Both offices have faced budget cuts, as has virtually every state agency and office.
Crist questioned whether Brummer had simply not budgeted responsibly, noting the office was warned at the beginning of last year of looming budget cuts. He also said the public defenders' offices lost a smaller percentage of money than most other state agencies.
''The average cuts were 6 percent, across the board,'' he said. ``The public defenders and the state attorneys did remarkably well. They received the least amount of cuts in our budget.''
Legal experts disagreed Monday on whether Brummer can refuse cases simply because his attorneys are overworked.
''The first showdown you're looking at is between the public defenders and the judge and how quick they can get out of jail after the judge puts them in jail for not accepting cases,'' said University of Florida law professor Bob Dekle. ``Refusing to accept appointments in that situation is basically refusing to perform his constitutional duty.''
Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, also questioned the legality of the move, noting that a 2005 law prohibits such action.
''I hope the public defender will reconsider what we consider to be a rash action,'' Jacobs said. ``They ought to work within the system rather than manufacture what we consider an unnecessary crisis.''
Brummer disagreed with Jacobs' interpretation of the law.
''If I say I can't do it in a professional manner, I mean it,'' Brummer said. ``If they tell me that my professional assessment, which I'm elected to make, is not adequate, then I'll pursue this as far as I have to through the courts.''
University of Miami law professor Donald Jones sided with Brummer's assessment and said the only legal solution will cost the state more money than the funding Brummer wants.
''What's going to have to happen, as near as I can tell, is the court's going to have to appoint private counsel, which will be more expensive,'' Jones said.
Three different times in the past, Brummer has refused to accept cases and forced the courts to appoint private attorneys. Each time the courts have agreed that his constitutional responsibility to his clients trumped budget woes.
''I'm not the only one. The case law is full of examples of public defenders not accepting cases,'' he said.
Brummer's office estimates it might have to refuse as many as 2,000 cases a month and it's unclear who will take the cases.
The Legislature set up regional counsel offices last year to take indigent clients when the public defenders' offices have conflicts of interest.
Joseph George, the regional counsel for Miami-Dade and Monroe, said he would take as many as he could but that his staff of 21 lawyers could never take on an additional 2,000 cases a month.
''Could we handle some of them? Of course we could,'' George said. ``I don't know what the right balance would be.''
The county's private defense bar has formally backed Brummer, saying he didn't have a choice.
Said Barry Wax, immediate past president of the Miami-Dade chapter of the Florida Association of Criminal Defense Lawyers:
``It's gotten to a point where their staffing has been so diminished by these budget cuts and the lawyers have been asked to do so much more than they could even conceivably be able to handle that the administration was really left with no choice but to take radical action.''
- - -
Calif. Bar Considers Attorney Misconduct Web Posts
Leigh Jones, The National Law Journal
June 10, 2008
Getting the details on attorneys accused of misconduct may become much easier if a controversial proposal by the State Bar of California wins approval.
The California bar association is considering a plan to post charges of misconduct against attorneys -- prior to an adjudication -- on its Web site in order to give the public easier access to the information.
While the bar association asserts that it is simply making information already available to the public easier to obtain, opponents argue that posting misconduct charges before a court decision will have a prejudicial impact on attorneys.
The proposal, which currently is open for public comment, calls for the State Bar of California to post misconduct charges on attorneys' profiles that appear on the association's Web site. The bar group would post the charges after an investigation by a grievance committee, which determines whether probable cause exists to pursue the allegations.
The information currently is available to the public, but "is very difficult to find," said Scott Drexel, State Bar of California chief trial counsel.
Members of the public seeking information about charges against attorneys must make a request for documents, which can take 10 days to two weeks to fulfill, he said. "It should be much more readily available," he said.
Among those opposing the plan is attorney David Carr, a member of a respondents defense bar, a group of about 25 California lawyers who represent attorneys charged with misconduct.
"The practical impact is going to torpedo a lawyers' reputation before the charges have been tried," Carr said. "There is something different when it can be so easily taken out of context and disseminated."
California's plan is not common. New York does not post misconduct charges, but does provide links to obtain decisions regarding charges. The Florida Bar posts formal complaints and other documents related to grievance proceedings, but does so only after an adjudication.
The Illinois Attorney Registration and Disciplinary Commission posts misconduct charges after a determination of probable cause, but for only 60 days.
The manner in which consumers can obtain information about attorney misconduct charges varies widely from jurisdiction to jurisdiction, said James Grogan, deputy administrator and chief counsel of the Illinois Attorney Registration and Disciplinary Commission.
"Usually it's a matter of public record, but good luck trying to find it," he said.
- - -
Keeping judges independent – [Editorial]
St. Louis Post-Dispatch
June 11, 2008
The U.S. Senate this week gave unanimous consent by voice vote to President George W. Bush’s appointment of Missouri Supreme Court Judge Stephen N. Limbaugh Jr. to the U.S. District Court for Eastern Missouri.
Given that Senate Democrats and the Republican president have been feuding over judicial appointments, and given that Judge Limbaugh built a generally conservative record in 16 years on the state Supreme Court, and given that he is the cousin of a certain outspoken radio host, why was there no dissent?
Perhaps it’s because Stephen N. Limbaugh Jr., 56 — like his father, Senior U.S. District Court Judge Stephen N. Limbaugh, Sr., 80 — is a highly regarded jurist whose scholarship, temperament and demeanor are beyond reproach. Indeed, the senior Stephen Limbaugh and his father, the late (and original) Rush Limbaugh of Cape Girardeau, both proudly served as president of the Missouri Bar.
All of which suggests some irony: When Judge Limbaugh Jr. steps up to the federal bench, Gov. Matt Blunt will appoint his successor on the state Supreme Court. And the Republican governor and some of his conservative supporters are fierce critics of the Missouri Bar’s influential role in the selection of judicial nominees.
Last summer, after a 5-2 Supreme Court decision (Judge Limbaugh dissented) that said public employees have the right to bargain collectively, Gov. Blunt criticized “judicial activism” and lack of political accountability on the court. Business interests and some conservative organizations began funding efforts to supposedly reform the Missouri Non-Partisan Courts Plan.
The “Missouri Plan,” which has become a national model for the merit selection of judges, was adopted in 1940 to take politics out of selection of judges for the Supreme Court, the state’s three courts of appeal and judicial circuits in urban areas.
At issue last summer was the selection of a successor for Supreme Court Judge Ronnie White, who retired to enter private practice. Under the Missouri Plan, a special seven-member Appellate Judicial Commission reviews applicants for the positions and sends three names to the governor.
The commission is headed by the chief justice of the Supreme Court and includes three members appointed by the Missouri Bar. The other three members are appointed by the governor for staggered terms of six years. Mr. Blunt, elected in 2004, has appointed only one member of the commission; the others were appointed by his Democratic predecessor, Bob Holden.
Critics of the plan say that it gives too much clout to lawyers and lacks political accountability. Further, they complain that the winnowing process of applicants occurs in secret, with only the names of the three finalists made public.
Mr. Blunt insisted that each of the three finalists fill out a nine-page, 111-question form that delved into their background, education and judicial philosophy. Some of the governor’s staffers (now former staffers) made repeated demands for more information from Chief Justice Laura Denvir Stith and the judicial commission. And some Republicans in the Legislature introduced bills to alter the Missouri Plan in ways that would subject judges to more political pressure — pressure from which they largely are protected under the Missouri Plan.
Ultimately, these efforts failed. The Missouri House rejected a bill that would have made modest changes to the non-partisan courts plan, with 20 Republicans voting with Democrats against it. Members of the state bar — Republicans and Democrats alike — lobbied against it. Although the existing court plan is not perfect, it does keep judges free from most political pressures. Supreme Court judges come up for retention votes after one year on the bench, but they usually don’t face well-financed opposition from special interest groups. If retained, they serve 12-year terms.
The Missouri Plan has given the state conservative Supreme Court judges (such as Stephen Limbaugh Jr. and William Ray Price Jr.) and liberal judges (such as Michael A. Wolff and Richard B. Teitelman). Whatever their particular judicial philosophies, these jurists have this in common: They are eminently qualified and proudly independent. What’s not to like?
Jailed Alabama judge removed from office
The Associated Press
June 5, 2008
MONTGOMERY, Ala. (AP) — The Alabama Court of Judiciary has removed a jailed judge from office.
The court ruled Thursday against Circuit Judge Stuart DuBose of Clarke County. The court spent Wednesday listening to testimony about how DuBose had abused drugs and violated the standards of conduct for judges. The court began deliberations Thursday morning.
DuBose was not in court in Montgomery because he is in the Baldwin County Jail on a federal charge of possessing as many as 30 guns in violation of a restraining order.
In court, the prosecution portrayed him as a drug-abusing judge who misused the power of his office. The defense argued unsuccessfully that the court should delay the proceedings until DuBose got a thorough mental evaluation.
- - -
Pin the tail (or trunk) on the judge: Why this game stinks – [Editorial]
Anniston Daily Star
On Tuesday, 12 candidates will compete to fill two empty seats on an Alabama appeals court charged with hearing "appeals of felony and misdemeanor cases." From the June 3 primary (and possibly a July 15 runoff) will emerge four candidates — a Republican and a Democrat vying for each of the two seats on the state Court of Criminal Appeals.
According to Alabama Secretary of State Beth Chapman, turnout among the state's registered voters will likely be between 12 percent and 15 percent.
To put it differently, as many as 416,000 or as few as 330,000 Alabamians could chart the course of Alabama criminal justice as defined by the Court of Criminal Appeals.
That's the way of Alabama's partisan judicial elections.
On the campaign trail, judicial candidates are fenced in from several fronts. Unlike the state's Court of Civil Appeals and Supreme Court, Court of Criminal Appeals races don't attract the high-dollar contributions from plaintiff lawyers and corporate interests, the two entities with business inside a civil appellate court.
With little public interest and somewhat modest campaign war chests, the candidates can't afford tit-for-tat TV advertising.
Also, judicial candidates are bound by ethics laws that make it impossible for them to make anything like the traditional campaign promise.
So the candidates make the circuit, newspaper editorial boards, local political party clubs and local courthouses. If they are lower-court judges, they talk about running an efficient docket that doesn't let cases linger. Of course, quantity and efficiency say virtually nothing about quality.
Thus a few Alabama voters will go to the polls — first this week for the primary and later in November for the general election — to decide replacements for Court of Criminal Appeals Judges H.W. "Bucky" McMillan and Pam Baschab. Starting next year the base salary for a seat on this court will be $160,016.53.
Among the 12 hopefuls are lower-court judges or state prosecutors or private practice attorneys. Ask candidates the difference between a Republican judge and a Democratic judge and most are stumped for answer. After all, justice is justice. You either receive it or you don't. Political party labels say nothing about how a judge will act.
Press harder for an answer and the best you'll get is, It gives the voters something to identify with.
Maybe so, but if Secretary of State Chapman's prediction is correct for Tuesday's election is accurate then only a small fraction — perhaps 1-in-7 registered voters — will even bother to have their say on a court that hears approximately 2,000 criminal appeals annually.
How the court weighs those appeals goes a long way in defining the quality of Alabama's criminal justice. Did the accused receive a fair trial? Was his or her legal counsel adequate? Lives are literally in the balance.
Can justice this important be left to an apathetic electorate that in most cases is influenced by a party label that may or may not have any bearing on whether a candidate has the intelligence, reasoning powers, legal savvy and even temper required of a quality judge?
It's a hard question, one that shakes the tree of Jacksonian populism that inspired judicial elections in the first place. On that count, Alabama is not alone; a majority of states elect some judges.
While widespread the practice has its critics. One prominent foe is former U.S. Supreme Court Justice Sandra Day O'Connor. "No other nation in the world does that," The New York Times quotes her as saying recently, "because they realize you're not going to get fair and impartial judges that way."
Fair and impartial is important, right? So too is the appearance of fair and appearance, and that's where elections where judicial candidates line up as either Democrats or Republicans is problematic.
The situation is worse in races where big dollars are contributed to statewide judicial candidates. Recall that ethics is concerned with the “appearance” of impropriety, not merely its existence. Judges taking campaign contributions from parties with a stake in appellate court outcomes looks bad. No way around it.
The state needs to begin a conversation about how it puts judges on the bench. Other states have retained the peoples' right to vote while installing safeguards that protect judicial independence. Here are some suggestions:
1. Lose the partisanship. Don't allow judicial candidates to run under the banner of a political party. That's how most municipal elections are run. There's no Democratic vs. Republican way to fix a pothole, so city hall hopefuls run without an "R" or a "D" beside their name. Might voters discern party membership nonetheless? Likely so, but the ballot would be free of a label that is generally useless when it comes to picking judges. The Alabama Bar has looked favorably at such a system.
2. Allow retention elections. Some states allow governors to appoint judges from a qualified pool of candidates. These appointments are subject to approval of the state Senate. Voters get their say at the end of a judge's term. The judge's name would appear on the ballot; voters could decide to retain or dismiss the judge. If the judge is voted out, the governor starts the whole process over.
3. Better regulate campaign cash. In 2006, the campaign for state Supreme Court went through more than $7 million. Already the state's judicial ethics code strongly discourages judgeship candidates from personally appealing for campaign funds. Some states have offered candidates the option of public financing. Those candidates receive a modest sum compiled from voluntary donations; in turn they promise to forgo private contributions that have the ability to taint judicial independence.
Official Montgomery is currently working on business it should have completed during the regular session of the Legislature. However, when the state's education budget for the upcoming school year is finished, lawmakers and the governor should turn their attention to judicial elections. The goal is not to take politics completely out of the process, an impossible task. Instead, the state should look to cleaning up how it puts qualified men and women on the bench without the worst of politics leaving an ugly bruise on our courts.
- - -
State bar selects data-backup firm
The Birmingham News
May 29, 2008
The Alabama State Bar has selected Oklahoma City-based CoreVault as exclusive provider of data backup and recovery services for its member lawyers and law firms.
Keith B. Norman, executive director of the lawyers' group, said many law firms find it challenging to back up and store their data on a daily basis. "In addition, their data isn't encrypted for increased security, so if a tape or external drive was lost, there is a risk someone could gain unauthorized access to that information," he said.
- - -
Good tort system a budget key – [Op-ed]
By LAWRENCE McQUILLAN, Mobile Press-Register
June 1, 2008
The deteriorating economy has pushed many state budgets into deficit, including Alabama's, but the problem is not uniform. Indeed, a new study by the National Conference of State Legislatures examines the revenue and expenditure situation in the 50 U.S. states for the current fiscal year and next.
Sixteen states face budget deficits in the current 2008 fiscal year, and 23 states will face budget deficits in the 2009 fiscal year.
Alabama, for example, will face a projected budget deficit of nearly 13 percent next fiscal year.
A reading of the National Conference of State Legislatures' report raises a key question: Is there a connection between a state's revenue outlook for 2009 and its tort-liability system? In other words, does a better tort system contribute to a healthier state budget by encouraging economic growth and greater inflows of tax revenue?
Based on the evidence, the answer is yes.
The states that the report classifies as "optimistic" in revenue outlook for 2009 have an average tort-system ranking of 4 (1 is the best ranking, 50 the worst). The rank of each state's tort system came from the Pacific Research Institute's "U.S. Tort Liability Index: 2008 Report."
North Dakota and Alaska ranked 1 and 2 in the Tort Index for having the lowest relative tort costs and fewest tort-litigation risks. They also have the best revenue outlooks for 2009.
In contrast, the states with a "pessimistic" revenue outlook for 2009 have a dismal average tort-system ranking of 36th. A costly and risky tort system produces a grim revenue picture.
States with a "stable" revenue forecast for 2009 have an average tort-system ranking of 23rd — right in the middle, as expected.
The lesson is clear: States with a better tort system enjoy a greater inflow of tax revenue because they have a stronger economy. States with a poor tort system suffer from weaker economies and sluggish tax revenues.
Past evidence is revealing.
In 2006, job growth was 57 percent greater in the 10 states with the best tort systems than in the 10 states with the worst. The same year, state-level GDP grew 25 percent faster in the 10 best vs. the 10 worst.
In 2006, the top 10 tort states had an average growth rate of tax revenues that was 24 percent greater than the bottom 10. The greater infusion of tax revenue, it should be noted, was due to higher economic growth, not higher tax rates.
In fact, taxpayers in the top tort states paid 8 percent less in effective tax rates in 2006 than those in the bottom states.
A tort system's impact on the economy is real. According to a McKinsey & Co. study, when a company is deciding where to expand, tort risks rank second in significance, trailing only the availability of qualified workers.
Entrepreneurs and investors are attracted to states that have reliable tort systems that discour age lawsuit abuse. They are also less likely to run from states with good tort systems when these economies slip.
This is what the National Conference of State Legislatures' budget numbers tell us. A good tort system acts like a shock absorber. It makes a state's economy and tax base more resilient to economic downturns.
The legal environment is an important ingredient for long-term economic and budget stability. A University of California-Berkeley economist found that implementing just one of six common tort reforms boosts a state's employment by 1 percent.
If more states had enacted meaningful tort reform in the past, perhaps fewer states would be experiencing budget woes today.
All states can improve by enacting tort reforms proven to enhance economic performance.
- - -
Defining 'practice of law' moves forward slowly
by Linda Chiem, Pacific Business News (Hawaii)
June 2, 2008
A new definition of the practice of law in Hawaii is not likely to take effect before next year. The Hawaii State Bar Association, working with attorneys and other professionals, has been trying to craft such a definition at the request of the state Supreme Court.
Only licensed attorneys can practice law in Hawaii, but what constitutes the practice of law is not clear. When the bar association tried to write a definition for the Supreme Court to accept earlier this year, attorneys found vigorous opposition from other professionals who deal with legal matters.
Since February, the bar association has been meeting with representatives from many of those affected business groups, including real estate and insurance agents, to weigh their concerns and develop acceptable common language.
The Supreme Court publishes rule changes twice a year -- on or about July 1 and Jan. 1. It's unlikely that a final draft defining the practice of law will be ready for the justices by this July, which would push any decision into 2009.
"I'm personally happy with the dialogue we've had with the groups and everyone is aware that this is a work in progress," said bar association President Jeffrey Sia. "The important thing is that we've gotten the word out not only to these groups but also to the public on what the intent was, and we're trying to accommodate everyone as best as we can.
"And I'm also realistic that it might not satisfy everyone and be exactly what they want."
The bar association has insisted that a definition is needed to protect people from getting bad legal advice. However, critics say the initial draft was so broad that it would prevent people such as insurance and real estate agents, accountants, paralegals and legal document service providers from doing their jobs. They accused the lawyers of using rule making to protect their turf.
Bar association Executive Director Lyn Flanigan said the process has been going well.
"The talking process was very good and we came a long way in having people understand that it was never our intention to put any of those groups under fire," she said.
Sia said the priority is making sure the basic definition of the practice of law is sufficiently broad but not too broad, which has been the main criticism.
He said the current version of the proposed rules includes exemptions for certain professional groups.
Groups such as the Hawaii Society of Certified Public Accountants have participated in the discussions and are seeing signs that a resolution can be reached.
"I don't know if we've worked out everything yet, but I do feel like we're moving in the right direction on working out the general terms and mechanics," said Ronald Heller, an attorney with Torkildson Katz Moore & Hetherington and counsel for the Hawaii Society of Certified Public Accountants. "The bar association has told us that they're not trying to block groups like the real estate agents and CPAs from doing what they do but to stop unlicensed people from practicing law, and we get a sense of what they want and what we want is not incompatible."
- - -