Lawyer inducted into hall of fame
By DAVID HOLDEN, The Huntsville Times
May 29, 2008
The late Patrick Richardson first from Huntsville
The late Patrick W. Richardson, a longtime Huntsville lawyer regarded as the father of University of Alabama in Huntsville, is one of the newest members of the Alabama Lawyers Hall of Fame.
In a special ceremony May 16 in the rotunda of the Alabama Supreme Court in Montgomery, Richardson became the 16th member added to the list of prominent lawyers. A fourth-generation lawyer, Richardson is the first lawyer from Huntsville to be honored. He died in 2004 at 79. His wife, Mary, and sons, Madison County District Judge Dick Richardson and Jim Richardson, attended the ceremony in Montgomery.
The law was his father's life, Dick Richardson said. It formed his view of the world and guided him in his service to the state and community, he said.
Other members of the hall of fame include Justice Hugo Black, William Rufus King, Judge Frank M. Johnson Jr. and Dean Farrah. This year's class included former U.S. Sen. Howell Heflin, Supreme Court Justice John Campbell and Judge Thomas Goode Jones.
Richardson was cited during the ceremony as the main catalyst in the creation of UAH, said Allen Brinkley, president of the Huntsville-Madison County Bar Association.
Dick Richardson said his father petitioned the extension office at the University of Alabama until a site was established here in 1949.
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Alabama's appellate courts abandoning oral arguments – [Op-ed]
By J. MARK WHITE, The Birmingham News
May 25, 2008
During the past six years, an average of 2,100 cases has been filed in the Supreme Court of Alabama each term. However, during this same period, the average number of oral arguments granted was only 25 each year.
During this entire six-year period, the Alabama Court of Civil Appeals granted oral argument in only 12 cases, and there were two consecutive years during which no oral argument was held.
Over the past seven years, the Alabama Court of Criminal Appeals has averaged only 22 oral arguments annually. I strongly suspect that if death penalty cases were excluded, the average yearly number of cases in which oral argument was heard in both the Alabama Supreme Court and the Court of Criminal Appeals would be in the single digits.
When compared with appellate court activity in other jurisdictions, Alabama's numbers are drastically low. In 2006, appellate courts in both Louisiana and New Hampshire heard oral argument in 39 percent of the cases docketed for appeal. The District of Columbia Court of Appeals heard oral argument in 31 percent of its cases. Historically, about 98 percent of the cases before the Supreme Court of Kansas and about 60 percent of the cases before the Kansas Court of Appeals were allowed oral argument. For the 2007 October term, the Supreme Court of the United States set aside 28 days for oral argument and scheduled oral argument in 50 cases.
The declining trend in oral argument suggests the appellate courts of Alabama are abandoning, or have already abandoned, the practice of oral argument. Citizens should ask the appellate courts why oral argument has declined so significantly and how this is affecting Alabama's judicial system. In a state where our appellate judges are selected by popular vote, Alabama citizens are entitled to answers.
As the third branch of American democratic government, the judiciary has a tremendous effect on the populace. But its role, while highly publicized, is arguably the least public.
Oral arguments, which in Alabama are open to the public, are virtually the only time when a citizen can come into contact with an appellate judge while that judge is doing his or her job. As U.S. Supreme Court Justice Felix Frankfurter once wrote, "The court's authority - possessed of neither the purse nor the sword - ultimately rests on sustained public confidence in its moral sanction."
The importance of appellate oral argument cannot be overstated in its role of conveying a semblance of visibility and accountability to an institution that can otherwise be perceived as closed to the very people who elect its members. Oral argument can and does provide and preserve the appearance of justice.
Consistent denial of oral argument can, at a very minimum, create the perception the courts are not interested in hearing what the parties and their counsel have to say. When the entire appellate decision-making process is conducted behind closed doors on the basis of written submissions alone, the people, the bar and the courts lose the humanizing "face" that oral argument provides.
Oral argument gives citizens the opportunity to experience and to participate to some degree in the workings of the appellate court. Oral argument provides great institutional value to the appellate courts, as the rule of law depends on the people's belief in the institution of law and their acceptance of judicial decisions. As U.S. Supreme Court Justice Antonin Scalia noted, "wise observers have long understood that the appearance of justice is as important as its reality." The impact that oral argument has on the public's perception of the legitimacy of our legal system cannot be overstated.
Does Alabama have an elected judicial system that is open for public review and subject to legal debate, or do we have an elected judicial system that is closed out of fear of public skepticism, a system where legal debate would simply interfere with predetermined conclusions? These questions must be addressed and answered by lawyers, judges and legal scholars, as well as by voters seeking to preserve what we know to be the best system of justice in the world.
We live in a society that desires more openness and accountability from elected leaders and government, including the courts. Oral argument opens the courtroom to the litigants and the public and, by so doing, sheds light on the appellate decision-making process and thereby encourages respect for the rule of law. By this means, all of us - the public, the bar, the individual judges and the court as an institution - win.
J. Mark White of Birmingham is the president-elect of the Alabama State Bar.
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American Exception - Rendering Justice, With One Eye on Re-election
By ADAM LIPTAK, The New York Times
May 25, 2008
Last month, Wisconsin voters did something that is routine in the United States but virtually unknown in the rest of the world: They elected a judge.
The vote came after a bitter $5 million campaign in which a small-town trial judge with thin credentials ran a television advertisement falsely suggesting that the only black justice on the state Supreme Court had helped free a black rapist. The challenger unseated the justice with 51 percent of the vote, and will join the court in August.
The election was unusually hard-fought, with caustic advertisements on both sides, many from independent groups.
Contrast that distinctively American method of selecting judges with the path to the bench of Jean-Marc Baissus, a judge on the Tribunal de Grand Instance, a district court, in Toulouse, France. He still recalls the four-day written test he had to pass in 1984 to enter the 27-month training program at the École Nationale de la Magistrature, the elite academy in Bordeaux that trains judges in France.
“It gives you nightmares for years afterwards,” Judge Baissus said of the test, which is open to people who already have a law degree, and the oral examinations that followed it. In some years, as few as 5 percent of the applicants survive. “You come out of this completely shattered,” Judge Baissus said.
The question of how best to select judges has baffled lawyers and political scientists for centuries, but in the United States most states have made their choice in favor of popular election. The tradition goes back to Jacksonian populism, and supporters say it has the advantage of making judges accountable to the will of the people. A judge who makes a series of unpopular decisions can be challenged in an election and removed from the bench.
“If you want judges to be responsive to public opinion, then having elected judges is the way to do that,” said Sean Parnell, the president of the Center for Competitive Politics, an advocacy group that opposes most campaign finance regulation.
Nationwide, 87 percent of all state court judges face elections, and 39 states elect at least some of their judges, according to the National Center for State Courts.
In the rest of the world, the usual selection methods emphasize technical skill and insulate judges from the popular will, tilting in the direction of independence. The most common methods of judicial selection abroad are appointment by an executive branch official, which is how federal judges in the United States are chosen, and a sort of civil service made up of career professionals.
Outside of the United States, experts in comparative judicial selection say, there are only two nations that have judicial elections, and then only in limited fashion. Smaller Swiss cantons elect judges, and appointed justices on the Japanese Supreme Court must sometimes face retention elections, though scholars there say those elections are a formality.
“To the rest of the world,” Hans A. Linde, a justice of the Oregon Supreme Court, since retired, said at a 1988 symposium on judicial selection, “American adherence to judicial elections is as incomprehensible as our rejection of the metric system.”
Sandra Day O’Connor, the former Supreme Court justice, has condemned the practice of electing judges.
“No other nation in the world does that,” she said at a conference on judicial independence at Fordham Law School in April, “because they realize you’re not going to get fair and impartial judges that way.”
The new justice on the Wisconsin Supreme Court is Michael J. Gableman, who has been the only judge on the Burnett County Circuit Court in Siren, Wis., a job he got in 2002 when he was appointed to fill a vacancy by Gov. Scott McCallum, a Republican.
The governor, who received two $1,250 campaign contributions from Mr. Gableman, chose him over the two candidates proposed by his advisory council on judicial selection. Judge Gableman, a graduate of Hamline University School of Law in St. Paul, went on to be elected to the circuit court position in 2003.
The much more rigorous French model, in which aspiring judges are subjected to a battery of tests and years at a special school, has its benefits, said Mitchel Lasser, a law professor at Cornell and the author of “Judicial Deliberations: A Comparative Analysis of Judicial Transparency and Legitimacy.”
“You have people who actually know what the hell they’re doing,” Professor Lasser said. “They’ve spent years in school taking practical and theoretical courses on how to be a judge. These are professionals.”
“The rest of the world,” he added, “is stunned and amazed at what we do, and vaguely aghast. They think the idea that judges with absolutely no judge-specific educational training are running political campaigns is both insane and characteristically American.”
But some American law professors and political scientists say their counterparts abroad should not be so quick to dismiss judicial elections.
“I’m not uncritical of the American system, and we obviously have excesses in terms of politicization and the campaign finance system,” said Prof. David M. O’Brien, a specialist in judicial politics at the University of Virginia and an editor of “Judicial Independence in the Age of Democracy: Critical Perspectives from Around the World.”
“But these other systems are also problematic,” Professor O’Brien continued. “There’s greater transparency in the American system.” The selection of appointed judges, he said, can be influenced by political considerations and cronyism that are hidden from public view.
A working paper from the University of Chicago Law School last year tried to quantify the relative quality of elected and appointed judges in state high courts in the United States. It found that elected judges wrote more opinions, while appointed judges wrote opinions of higher quality.
“A simple explanation for our results,” wrote the paper’s authors — Stephen J. Choi, G. Mitu Gulati and Eric A. Posner — “is that electoral judgeships attract and reward politically savvy people, while appointed judgeships attract more professionally able people. However, the politically savvy people might give the public what it wants — adequate rather than great opinions, in greater quantity.”
Herbert M. Kritzer, who was until recently a professor of law and political science at the University of Wisconsin, said judicial elections had deep roots in the state and the nation.
“It’s a remnant of the populist Jacksonian image of public office,” he said. “We’re crazy about elections. The number of different offices we elect is enormous.”
There is reason to think, though, that the idea of popular control of the government associated with President Andrew Jackson is an illusion when it comes to judges. Some political scientists say voters do not have anything near enough information to make sensible choices, in part because most judicial races rarely receive news coverage. When voters do have information, these experts say, it is often from sensational or misleading television advertisements.
“You don’t get popular control out of this,” said Steven E. Schier, a professor of political science at Carleton College in Minnesota. “When you vote with no information, you get the illusion of control. The overwhelming norm is no to low information.”
Still, judges often alter their behavior as elections approach. A study in Pennsylvania by Gregory A. Huber and Sanford C. Gordon found that “all judges, even the most punitive, increase their sentences as re-election nears,” resulting in some 2,700 years of additional prison time, or 6 percent of total prison time, in aggravated assault, rape and robbery sentences over a 10-year period.
In common law countries, judges are generally appointed by executive branch officials, though lately judicial commissions made up of lawyers and lay people are taking a larger role in the initial selection of candidates. Scotland adopted that method in 2002, and England and Wales in 2006.
Alan Paterson, a Scottish law professor who serves on the Judicial Appointments Board for Scotland, said his country’s system was transparent and worked well, though he acknowledged that the idea behind judicial elections was attractive.
“Part of me likes it,” he said. “It follows from the separation of powers. But in practical terms, it’s very difficult. They have to raise a lot of money.”
“The theory is a nice theory,” he said. “The practice of it is unworkable. We’re not going to do it.”
In some nations, of course, the judiciary is neither independent nor accountable to the public.
“Take a country like Vietnam,” Professor O’Brien said. “Those poor judges are controlled by party officials even at the trial level. That’s even worse than we have in Pennsylvania, Ohio and Texas, where the cost of judicial campaigns has just escalated over the last couple of decades.”
Judge Gableman did not respond to phone messages seeking comment. In answer to a question about his qualifications in an online forum on The Milwaukee Journal Sentinel’s Web site, he acknowledged that he had no appellate court experience but said he had argued a case, concerning zoning, before the state Supreme Court.
In the recent election, Judge Gableman’s campaign ran a television advertisement juxtaposing the images of his opponent, Justice Louis B. Butler Jr., in judicial robes, with a photograph of Ruben Lee Mitchell, who had raped an 11-year-old girl. Both the judge and the rapist are black.
“Butler found a loophole,” the advertisement said. “Mitchell went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”
Justice Butler had represented Mr. Mitchell as a lawyer 20 years before and had persuaded two appeals courts that his rape trial had been flawed. But the state Supreme Court ruled that the error was harmless, and it did not release the defendant, as the advertisement implied. Instead, Mr. Mitchell served out his full term and only then went on to commit another crime.
In an interview, Justice Butler — a graduate of the University of Wisconsin law school who served for 12 years as a judge in Milwaukee courts — said the past few months had tested his commitment to elections.
“My position historically has been that there is something to be said for the public to be selecting people who are going to be making decisions about their futures,” Justice Butler said.
“But people ought to be looking at judges’ ability to analyze and interpret the law, their legal training, their experience level and, most importantly, their impartiality,” he continued. “They should not be making decisions based on ads filled with lies, deception, falsehood and race-baiting. The system is broken, and that robs the public of their right to be informed.”
Judge Baissus, the French judge, said his nation had once considered electing its judiciary.
“It’s an argument that was largely debated after the French revolution,” he said. “It was thought not to be a good idea. People seeking re-election would not be independent. They are indeed close to the electorate, but sometimes uncomfortably so.”
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On the merits, judges deserve decent pay raise: Bill's veto denies state's judiciary fair compensation, but fight will continue
By Gerald M. Edenfield
For the Journal-Constitution (Atlanta)
As president of the State Bar of Georgia, I am extremely disappointed by Gov. Sonny Perdue's veto of House Bill 119, which would have granted the first substantial salary increase for Georgia's judges in nine years.
Still, the judicial pay raise legislation did win passage in the General Assembly, a noteworthy success that came after a monumental two-year effort. It is also a testament to what can be accomplished through teamwork. This measure passed because of support from the legal and business communities and a diverse majority of lawmakers —- Republican and Democrat, metropolitan and rural.
The process began in 2006, when the state bar's Commission on Judicial Service completed a comprehensive study of a number of issues involving the work of our Superior Court judges, Court of Appeals judges and Supreme Court judges, including salary stagnation at the state level.
Other than minor cost-of-living increases, the state has not appropriated a pay raise for our judges since 1999. Meanwhile, the compensation of private-practice attorneys and law school professors has continued to increase dramatically. Following an intensive study of judges' compensation in comparison with lawyers in the private sector, the Commission on Judicial Service recommended a 20 percent across-the-board pay increase to help close this gap.
Judicial compensation has been a top legislative priority of the State Bar, but the issue has also enjoyed broad support from the Georgia Chamber of Commerce (a special thanks to President George M. Israel III), former U.S. Sen. Sam Nunn and Georgia Republican Party General Counsel Randy Evans. Their work on behalf of the bill was invaluable.
I also want to thank House Judiciary Committee Chairman Wendell Willard (R-Atlanta) and Senate Judiciary Committee Chairman Preston Smith (R-Rome) for their leadership in steering the measure through the Legislature.
Georgia is the ninth-largest state, and ours is the fifth-largest State Bar. Georgia is also home to a substantial number of Fortune 500 company headquarters, and our judges are called on to handle increasingly complex cases. We believe they should be compensated accordingly.
As introduced, HB 119 proposed a 20 percent salary increase for our state's judges. That proposal was reduced to a 5 percent increase, to take effect July 1, 2009, for the state's judges and district attorneys. HB 119 enjoyed overwhelming bipartisan support: It was adopted by final votes of 146-9 in the House and 52-0 in the Senate.
Although we are disappointed by the governor's action, the state bar will continue working on behalf of adequate compensation for members of our judiciary.
Gerald M. Edenfield of Statesboro is president of the State Bar of Georgia.
HOW JUDGES' SALARIES COMPARE
Superior Court ..................$158,000
State Court of Appeals ......$166,000
State Supreme Court..........$167,000
UGA law professor............$182,000
U.S. District Court.............$169,000
U.S. Court of Appeals........$180,000
U.S. Supreme Court ..........$208,000
Notes: Based on 2007 study by the State Bar of Georgia. The Superior Court judge and private-practice salaries refer to judges and attorneys in Atlanta. Law professor salary refers to an average of the salaries of the seven most senior professors at the University of Georgia College of Law. Salaries for federal judgeships are 2008 figures.
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DuBose should resign – [Editorial]
May 27, 2008
WITH LEGAL and personal problems piling up on Clarke County Circuit Judge Stuart DuBose, it's time for him to resign.
Like anyone else, Judge DuBose is innocent until proven guilty of the pending criminal charges. But a judge who is in jail because another judge thinks he's a danger to the community, and whose own brother says "needs to get help," is obviously not capable of carrying out the duties of his elected office.
Judge DuBose had already been suspended from the bench because the Judicial Inquiry Commission brought multiple charges of violating legal ethics. He also recently spent 30 days in a substance abuse rehabilitation center in Pensacola before being jailed on federal gun charges.
Last week, a U.S. magistrate judge ordered that Judge DuBose remain in jail on charges of possession of firearms by a person who is the subject of a restraining order and of lying about it on an application when he bought a gun in Saraland. In addition to the disturbing testimony of his brother, Jackson police officer Lem DuBose, there was testimony that agents found marijuana in a safe in Judge DuBose's home as well as a letter that seemed to threaten his wife.
Allison DuBose had previously obtained a restraining order against Judge DuBose as part of divorce proceedings. In addition to being ordered to leave their home and stay away from his wife, the judge under federal law was prohibited from possessing firearms.
Authorities have alleged that they found guns in the judge's home, that there was a bullet hole in a large-screen TV inside the house, that Judge DuBose fired shots near a survey crew working close to a family farm and that he threatened a Jackson police officer.
As for the ethics charges, there are 60 separate allegations covering his conduct both on the bench and as a private lawyer before being elected to the judgeship in 2006. They include threatening attorneys and writing a will leaving a dying man's estate to a caregiver without ever meeting the man.
Judge DuBose has cited "diminished capacity" in his formal response to the ethics charges.
Clearly, Judge DuBose is a very troubled individual who needs to devote himself to dealing with his problems. In the meantime, he owes it to the citizens of the judicial district comprised of Clarke, Choctaw and Washington counties to step down so that Gov. Bob Riley can appoint someone who can handle the caseload and whose behavior is above reproach.
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Supermarkets in line to offer legal services
By MICHAEL HOWIE, The Scotsman (Edinburgh, Scotland)
May 23, 2008
SCOTLAND'S legal profession yesterday opened the door to competition from supermarkets and banks after a "historic" vote to end their control over the market. The Law Society of Scotland overwhelmingly backed a motion to break the monopoly solicitors have over the ownership of legal firms in Scotland.
The move means that a sweeping change in the way legal services can be provided is now a significant step closer.
The Office of Fair Trading (OFT) last year made a range of recommendations in light of a complaint by a consumer group that the current set-up hinders market innovation. Currently, lawyers cannot go into partnership with non-lawyers, but the OFT believes consumers would benefit if these "alternative business structures" were overhauled.
Kenny MacAskill, the justice secretary, has already given his backing to reform of the legal profession, insisting that "the status quo is not an option".Yesterday's annual general meeting of the Law Society saw members vote around nine to one in favour of change.
Richard Henderson, the president of the Law Society, said: "This is a historic decision, there's no doubt about that. There's been a great deal of thought and discussion on the question of alternative business structures. That's been going on for some time.
I'm very grateful to our members for the measured way the entire issue has been handled. "We have … got the support of the profession to take the matter forward.
"This is only the start of a long process. Further discussions will take place to draw up specific proposals, which we will feed back to government."
He said the society would "continue to work closely with its members from across all sectors of the profession, the government and other stakeholders to ensure that any future reforms will benefit those who require legal services and that access to justice remains central".
The vote will pave the way for external ownership of law firms, as well as partnerships between solicitors and non-solicitors, or organisations such as banks or supermarkets providing legal services.
A crucial aspect of reform that will open the legal market, Mr Henderson said, would be to ensure the new companies providing legal services were properly regulated and work to the current professional standards.
The OFT has also said the ban on advocates forming partnerships should be removed and the public should be allowed direct access, rather than having to go through a solicitor.
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Heflin to be honored by the State Bar
ERIC VELASCO, The Birmingham News
May 16, 2008
Former U.S. Senator Howell Heflin will be inducted posthumously into the Alabama Lawyers Hall of Fame to honor his career in law and politics, the Alabama State Bar said.
Heflin, who died in 2005, is one of four inductees in a ceremony at 11:30 a.m. today at the Heflin-Torbert Building in Montgomery.
Heflin, who served 18 years in the U.S. Senate, also was chief justice of the Alabama Supreme Court from 1971 to 1977, and president of the state bar from 1965 to 1966.
He is being honored as a "decorated soldier, successful lawyer, judicial reformer and active bar leader," according to a release from the state bar.
The statewide organization of lawyers established the hall of fame five years ago to honor lifetime achievement in the field.
In addition to Heflin, today's inductees are:
John Archibald Campbell (1811-1889), who was associate justice of the U.S. Supreme Court from 1853 to 1861. He also served in the state legislature, 1836-1837 and 1842-1843, and was known as a constitutional scholar during his legal career.
Thomas Goode Jones (1844-1914), who is a former state governor (1890-1894), and U.S. District Court judge (1901-1914). Jones carried the flag of truce at Appomattox, the official end of the Civil War, before embarking on a career in state government.
Patrick W. Richardson (1925-2004), who was president of the state bar, 1969-1970, and played a key role in establishing the University of Alabama at Huntsville. The fourth-generation lawyer also was president of the Huntsville-Madison County Bar Association, 1965-1966.
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Harper Lee becomes special member of Alabama State Bar
The Associated Press
May 16, 2008
MONTGOMERY, Ala. (AP) - The author of "To Kill a Mockingbird," Harper Lee, has received an honorary special membership in the Alabama State Bar.
Alabama Chief Justice Sue Bell Cobb made the presentation Friday in Montgomery.
State Bar President Samuel Crosby said Lee's character Atticus Finch has become the personification of the exemplary lawyer in serving the legal needs of the poor.
Lee studied law at the University of Alabama from 1945-1949, but was unable to complete her studies and sit for the bar exam.
The Alabama Supreme Court voted unanimously to approve the presentation of the special bar membership to Lee.
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State Bar honors Heflin, others...
By Bob Martin, Montgomery Independent
May 21, 2008
Former U. S. Senator and State Chief Justice Howell Heflin, along with three other distinguished Alabamians were inducted into the Alabama Lawyers Hall of Fame last week. Heflin served one six-year term as chief justice from 1971-77 and was instrumental in the passage of major constitutional reforms to modernize the state’s judicial system.
He then served 18 years in the U. S. Senate where he was chairman of the Senate Ethics Committee during the investigation of the Keating Five, which included a probe into Sen. John McCain’s dealing in the Savings and Loan scandal. Heflin, who died in 2005, was also president of the State Bar in 1965-66.
Heflin was honored as a “decorated soldier (the recipient of the Silver Star and two purple hearts in the Pacific Theatre during World War II), a successful lawyer and judicial reformer,” according to a spokesman for the State Bar.
Others honored were:
John Archibald Campbell (1811-1889) who was associate justice of the U.S. Supreme Court from 1853 to 1861. He also served in the state legislature, 1836-1837 and 1842-1843, and was known as a constitutional scholar during his legal career.
Thomas Goode Jones (1844-1914) who is a former Alabama governor (1890-1894) and U.S. District Court judge (1901-1914). Jones carried the flag of truce at Appomattox, the official end of the Civil War, before embarking on a career in state government. Jones Law School in Montgomery bears his name.
Patrick W. Richardson (1925-2004), who was president of the state bar, 1969-1970, and played a key role in establishing the University of Alabama at Huntsville. The fourth-generation lawyer also was president of the Huntsville-Madison County Bar Association, 1965-1966.
A personal note: I had the opportunity to work for Chief Justice Heflin and consider him one of the finest public servants our state has ever had. He was also one of Ronald Reagan’s favorite senators and spent many evenings with the former president swapping “tall tales,” perhaps even some about his favorite fictional character, “No-Tie Hawkins.”
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Supreme Court: Still a bidding war? – [Editorial]
The Clarion-Ledger (Mississippi)
May 17, 2008
Rarely has the reputation of Mississippi's judicial system been at a lower ebb.
The judicial bribery scandal that has so far culminated in Oxford attorney Richard "Dickie" Scruggs pleading guilty of conspiring to bribe a state Circuit Court judge with $40,000 in cash in exchange for a favorable ruling in a case took care of that.
In that case, Scruggs had been sued by another law firm over the division of $26.5 million in attorneys fees related to Hurricane Katrina insurance claims.
Scruggs, his law firm associate Sid Backstrom, Booneville attorney Joey Langston, New Albany attorney Tim Balducci and former state auditor Steve Patterson have all pleaded guilty in connection with federal judicial bribery charges in two separate investigations.
Why is public confidence in the legal profession and in the state's judiciary low? A significant part of the reason is that the ever-escalating war of political contributions between big business and the trial lawyers in state judicial elections has turned those elections into bidding wars for judges in the political area.
Now, the Scruggs/Langston affairs suggest to the public that not all the bidding was done through campaign contributions. That's an ominous, sobering reality for the voters of this state to process.
The price of judicial elections - funded primarily either by the trial lawyers who argue cases before the court or the business/medical/insurance special interests who are the targets of lawsuits - is climbing.
The average price of a state Supreme Court campaign in 2000 escalated to a then-unheard-of figure of $379,839 with at least one of the winners raising three times that amount.
Two years later in 2002, the average price of a Supreme Court race in Mississippi had escalated to $605,338 with the winner raising over $1 million.
In the 2008 judicial elections, four incumbent Supreme Court judges face re-election bids. That means they have begun raising money for their "non-partisan" campaigns that will be conducted with all of the code words that identify them with one side or the other. While there should be nothing to consider but competence, fairness and character in selecting a judge, they will have to attract voters' attention and cater to partisan and special interests.
Most judges disdain raising money and campaigning, but it is the system we have. The elections have increasingly become the targets of chicanery and pure bidding wars.
Judicial candidates should exercise restraint, but they and the state legal community should seriously work to change the elective system. Meanwhile, get ready for another round of big-money, special-interest-driven elections for positions that should be above it all.
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Doctors Say ‘I’m Sorry’ Before ‘See You in Court’
By KEVIN SACK, The New York Times
May 18, 2008
CHICAGO — In 40 years as a highly regarded cancer surgeon, Dr. Tapas K. Das Gupta had never made a mistake like this. As with any doctor, there had been occasional errors in diagnosis or judgment. But never, he said, had he opened up a patient and removed the wrong sliver of tissue, in this case a segment of the eighth rib instead of the ninth.
Once an X-ray provided proof in black and white, Dr. Das Gupta, the 74-year-old chairman of surgical oncology at the University of Illinois Medical Center at Chicago, did something that normally would make hospital lawyers cringe: he acknowledged his mistake to his patient’s face, and told her he was deeply sorry.
“After all these years, I cannot give you any excuse whatsoever,” Dr. Das Gupta, now 76, said he told the woman and her husband. “It is just one of those things that occurred. I have to some extent harmed you.”
For decades, malpractice lawyers and insurers have counseled doctors and hospitals to “deny and defend.” Many still warn clients that any admission of fault, or even expression of regret, is likely to invite litigation and imperil careers.
But with providers choking on malpractice costs and consumers demanding action against medical errors, a handful of prominent academic medical centers, like Johns Hopkins and Stanford, are trying a disarming approach.
By promptly disclosing medical errors and offering earnest apologies and fair compensation, they hope to restore integrity to dealings with patients, make it easier to learn from mistakes and dilute anger that often fuels lawsuits.
Malpractice lawyers say that what often transforms a reasonable patient into an indignant plaintiff is less an error than its concealment, and the victim’s concern that it will happen again.
Despite some projections that disclosure would prompt a flood of lawsuits, hospitals are reporting decreases in their caseloads and savings in legal costs. Malpractice premiums have declined in some instances, though market forces may be partly responsible.
At the University of Michigan Health System, one of the first to experiment with full disclosure, existing claims and lawsuits dropped to 83 in August 2007 from 262 in August 2001, said Richard C. Boothman, the medical center’s chief risk officer.
“Improving patient safety and patient communication is more likely to cure the malpractice crisis than defensiveness and denial,” Mr. Boothman said.
Mr. Boothman emphasized that he could not know whether the decline was due to disclosure or safer medicine, or both. But the hospital’s legal defense costs and the money it must set aside to pay claims have each been cut by two-thirds, he said. The time taken to dispose of cases has been halved.
The number of malpractice filings against the University of Illinois has dropped by half since it started its program just over two years ago, said Dr. Timothy B. McDonald, the hospital’s chief safety and risk officer. In the 37 cases where the hospital acknowledged a preventable error and apologized, only one patient has filed suit. Only six settlements have exceeded the hospital’s medical and related expenses.
In Dr. Das Gupta’s case in 2006, the patient retained a lawyer but decided not to sue, and, after a brief negotiation, accepted $74,000 from the hospital, said her lawyer, David J. Pritchard.
“She told me that the doctor was completely candid, completely honest, and so frank that she and her husband — usually the husband wants to pound the guy — that all the anger was gone,” Mr. Pritchard said. “His apology helped get the case settled for a lower amount of money.”
The patient, a young nurse, declined to be interviewed.
Mr. Pritchard said his client netted about $40,000 after paying medical bills and legal expenses. He said she had the rib removed at another hospital and learned it was not cancerous. “You have no idea what a relief that was,” Dr. Das Gupta said.
Some advocates argue that the new disclosure policies may reduce legal claims but bring a greater measure of equity by offering reasonable compensation to every injured patient.
Recent studies have found that one of every 100 hospital patients suffers negligent treatment, and that as many as 98,000 die each year as a result. But studies also show that as few as 30 percent of medical errors are disclosed to patients.
Only a small fraction of injured patients — perhaps 2 percent — press legal claims.
“There is no reason the patient should have to pay the economic consequences for our mistakes,” said Dr. Lucian L. Leape, an authority on patient safety at Harvard, which recently adopted disclosure principles at its hospitals. “But we’re pushing uphill on this. Most doctors don’t really believe that if they’re open and honest with patients they won’t be sued.”
The Joint Commission, which accredits hospitals, and groups like the American Medical Association and the American Hospital Association have adopted standards encouraging disclosure. Guidelines vary, however, and can be vague. While many hospitals have written policies to satisfy accreditation requirements, only a few are pursuing them aggressively, industry officials said.
“We’re still learning the most effective way to have these most difficult conversations,” said Nancy E. Foster, the hospital association’s vice president for quality and patient safety. “It’s a time of high stress for the patient and for the physician. It’s also a time where information is imperfect.”
The policies seem to work best at hospitals that are self-insured and that employ most or all of their staffs, limiting the number of parties at the table. Such is the case at the Veterans Health Administration, which pioneered the practice in the late 1980s at its hospital in Lexington, Ky., and now requires the disclosure of all adverse events, even those that are not obvious.
To give doctors comfort, 34 states have enacted laws making apologies for medical errors inadmissible in court, said Doug Wojcieszak, founder of The Sorry Works! Coalition, a group that advocates for disclosure. Four states have gone further and protected admissions of culpability. Seven require that patients be notified of serious unanticipated outcomes.
Before they became presidential rivals, Senators Hillary Rodham Clinton and Barack Obama, both Democrats, co-sponsored federal legislation in 2005 that would have made apologies inadmissible. The measure died in a committee under Republican control. Mrs. Clinton included the measure in her campaign platform but did not reintroduce it when the Democrats took power in 2007. Her Senate spokesman, Philippe Reines, declined to explain beyond saying that “there are many ways to pursue a proposal.”
The Bush administration plans a major crackdown on medical errors in October, when it starts rejecting Medicare claims for the added expense of treating preventable complications. But David M. Studdert, an authority on patient safety in the United States who teaches at the University of Melbourne in Australia, said the focus on disclosure reflected a lack of progress in reducing medical errors.
“If we can’t prevent these things, then at least we have to be forthright with people when they occur,” Mr. Studdert said.
For the hospitals at the forefront of the disclosure movement, the transition from inerrancy to transparency has meant a profound, if halting, shift in culture.
At the University of Illinois, doctors, nurses and medical students now undergo training in how to respond when things go wrong. A tip line has helped drive a 30 percent increase in staff reporting of irregularities.
Quality improvement committees openly examine cases that once would have vanished into sealed courthouse files. Errors become teaching opportunities rather than badges of shame.
“I think this is the key to patient safety in the country,” Dr. McDonald said. “If you do this with a transparent point of view, you’re more likely to figure out what’s wrong and put processes in place to improve it.”
For instance, he said, a sponge left inside an patient led the hospital to start X-raying patients during and after surgery. Eight objects have been found, one of them an electrode that dislodged from a baby’s scalp during a Caesarian section in 2006.
The mother, Maria Del Rosario Valdez, said she was not happy that a second operation was required to retrieve the wire but recognized the error had been accidental. She rejected her sister’s advice to call a lawyer, saying that she did not want the bother and that her injuries were not that severe.
Ms. Valdez said she was gratified that the hospital quickly acknowledged its mistake, corrected it without charge and later improved procedures for keeping track of electrodes. “They took the time to explain it and to tell me they were sorry,” she said. “I felt good that they were taking care of what they had done.”
There also has been an attitudinal shift among plaintiff’s lawyers who recognize that injured clients benefit when they are compensated quickly, even if for less. That is particularly true now that most states have placed limits on non-economic damages.
In Michigan, trial lawyers have come to understand that Mr. Boothman will offer prompt and fair compensation for real negligence but will give no quarter in defending doctors when the hospital believes that the care was appropriate.
“The filing of a lawsuit at the University of Michigan is now the last option, whereas with other hospitals it tends to be the first and only option,” said Norman D. Tucker, a trial lawyer in Southfield, Mich. “We might give cases a second look before filing because if it’s not going to settle quickly, tighten up your cinch. It’s probably going to be a long ride.”
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This lawyer gives back – [Letter-to-the-Editor]
May 9, 2008
Red Wilkins is an imposing figure in a courtroom. Tall, broad-shouldered, fit and trim, the 67-year-old Bay Minette lawyer unnerves even the most confident witness with his piercing brown eyes and booming voice.
He has been a fixture stalking the halls of the Baldwin County Courthouse for more than 42 years. During that time, he has represented clients as diverse as insurance companies and small-time local farmers. He took on Exxon on behalf of the Baldwin County Commission, successfully arguing that the company's offshore oil drilling muds were polluting local waters. His closing arguments to Baldwin County juries are legendary.
Red loves simple things. He led a Boy Scout troop for more than ten years. He is an avid quail hunter and an elder and Sunday School teacher in his Presbyterian church. And he likes dogs. On a recent cold day, Red was walking Suzi, his Jack Russell Terrier.
Red and Suzi came upon a neglected stray dog. After returning home, Red worried about the dog. The next day he learned that the dog had been taken to a local veterinarian and destroyed. That day Red committed to find a way to open a "no kill" animal shelter in Bay Minette.
It is hard to say "no" to Red Wilkins. As he began to put together his plan, many people thought it unrealistic. But Red persuaded his friends to help him acquire 5 acres of land. An architect was engaged and North Baldwin Animal Shelter Inc. was formed. He called on friends to donate materials and services for the building.
And he raised cash. In his direct but persuasive way, Red's solicitation letters began, "I'm only asking a few of my friends to help with this project..." Who could refuse? In addition to the in-kind pledges, he has now raised more than $125,000 in cash.
The plan for the shelter is ambitious. It will initially house 50 dogs but can be expanded to accommodate up to 200. It will have a "night drop" for people to leave strays with "no questions asked." No animal will be destroyed unless it is unable to recover. Pet adoptions will be advertised on an electronic billboard erected beside the shelter, with photographs of featured pets.
The "no kill" animal shelter is typical of the charitable work done many times in his life by Red Wilkins, always without fanfare. Communities which are served by people like Red Wilkins are better because of it. As in many communities across the state, this Alabama lawyer renders service.
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Tuition at local law schools increases in 2008
Birmingham Business Journal
May 9, 2008
Tuition up at four law schools. The annual cost of tuition increased at four of Alabama's five law schools in 2008. Birmingham's Miles College was the only school that did not report an increase, according to research by the Birmingham Business Journal.
Thomas Goode Jones School of Law at Faulkner University in Montgomery had the largest increase of any state law school.The school, which became accredited by the American Bar Association in 2006, increased its tuition by more than 27 percent - from $22,000 to $28,000.
That increase makes the school Alabama's most expensive, just ahead of Cumberland School of Law at Samford University. Cumberland's tuition rose 6.4 percent to $27,892 in 2008.
The University of Alabama School of Law, which is the largest in the state with 515 students, increased its tuition by just less than 15 percent. It now costs $11,190 in annual tuition for in-state students at the school, up from $9,736 in 2007. For out-of-state students, the tuition is $22,170.
Birmingham School of Law's tuition rose just 3.8 percent to $4,500.
Miles College, which reported an average cost per semester hour of $115, had no change from 2007 to 2008.
While tuition was on the rise for most of the schools, enrollment trends varied.
Jones added 26 students, while Alabama and Birmingham School of Law posted slight gains. Enrollment dropped slightly at both Cumberland and Miles.
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On the clock: Eliminating billable hours at law firms - While some firms are eliminating billable hours, others are offering alternative methods
By Ty West and Kevin Kemper, Birmingham Business Journal
May 9, 2008
The clock is ticking toward the end of the billable hour system at some law firms around the country, but Birmingham firms are sticking with the status quo for now. The billable hour system, which charges clients by the hour for legal services, has been a standard billing method for decades, but has its share of critics that claim it results in exorbitant legal costs and the dragging out of legal procedures.
That has resulted in some firms, such as Columbus, Ohio's Waite Schneider Bayless & Chesley Co. LPA, eliminating the billable hours method altogether.
And with several large clients pushing their representative firms toward alternative billing arrangements, even more firms could begin offering new arrangements and eliminating billable hours.
That hasn't so much happened in Birmingham, however, as most major firms still use the billable hour system, with fees ranging from $150 per hour for first-year students and up to $450, according to industry insiders.
But even though local firms haven't abandoned the system - although Ford & Harrison LLP, an Atlanta firm with an office in Birmingham, removed its billable hour requirement for first-year associates - many firms are now offering more alternative billing arrangements.
Jay St. Clair, office managing shareholder of Littler Mendelson's Birmingham office, said that might not be a bad thing for the legal industry. St. Clair said the billable hour system is relatively new for the old profession - coming of age during the advent of computers that allowed easy tracking of hours.
Before that, lawyers used a value-based system, charging by their judgment of the value of their services. "Personally, I think that clients might be better served if it were more of a value system," St. Clair said. "(But) I don't know that we would ever go back to the old days."
But what has happened, St. Clair said, is that firms are now searching for alternative billing models that may reflect that value system. While law firms have often charged flat fees for simple services, such as divorces or wills, he said they are now commonly offering similar arrangements for more complicated processes.
For instance, in a lawsuit, a firm might handle a case for a certain period of time for one fixed amount, rather than racking up hours through the entire process.
Other firms have begun to charge fees that are conditional, based on the outcome received.
"That gets back to more value billing," St. Clair said. "It's not so much the time it took, but what the value of the services was."
Kenneth Randall, dean of the University of Alabama School of Law, said many firms are looking to alternative billing arrangements as a way to attract clients. "Due to the competition among firms, businesses certainly are looking for economic efficiencies when they look at law practices," Randall said.
Although it is sometimes difficult to come up with a flat-rate, since every case is different and requires different skill sets and procedures, Randall said some firms are exploring hybrid models that combine elements of the billable hour system and of a value-based system.
Randall said those types of hybrid arrangements will likely increase in popularity, rather than firms completely eliminating the billable hours system.
Those alternative arrangements could resolve many of the issues raised by an American Bar Association study on the billable hour and its effect on attorneys at large and small firms across the country. The report suggests the billable hour is at the nexus of many of the profession's problems.
"The billable hour is fundamentally about quantity over quality, repetition over creativity," the report says.
Because attorneys charge by the hour, their incentive for a quick resolution and pre-case research is diminished.
St. Clair said that represents another gap between the value of services and the value of a billable hour - begging the question whether the same fee should be charged for an hour of research as for an hour in the courtroom.
"Not every hour is equal," St. Clair said. "I may get a tremendous insight on a case, and that really happens in an instant, but that time is of much greater value than hours spent reviewing documents."
With legal costs continuing to climb - one survey found 60 percent of companies spent more than $1 million on legal costs in 2007 - some corporate clients are beginning to push back against the system.
Wal-Mart sent a memo to its vendor law firms last year that said it would no longer rubber stamp rate increases for legal services, especially since rates were nearing $1,000 per hour.
Other companies, such as Cisco Systems Inc. and Caterpillar Inc., have pushed their firms toward alternative billing arrangements. St. Clair said that could be a sign that clients are changing the way they look at legal costs.
"I think clients are beginning to realize that maybe there is a better way to value legal services," he said.
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Tennessee's Trial Run – [Editorial]
The Wall Street Journal
May 10, 2008
Making things happen can be difficult in government, so Tennessee lawmakers have a plum assignment in the coming weeks. As the clock runs down on the state's method of judicial selection, the best thing they can do is nothing at all.
Since the 1970s, Tennessee has used a modified Missouri Plan for choosing its judges, known to its proponents as "merit selection." Intended as a way to keep politics out of judicial selection, the method has instead given disproportionate influence to the state trial bar and tilted state courts leftward. The Tennessee plan is set to expire this summer, requiring it to be renewed, reformed, or left to disappear when the legislative session ends this month.
Not if the trial lawyers can help it. Under the current process, nominees to the state appellate court and state supreme court are chosen by a 17-member nominating commission, of which 14 are lawyers and 12 are chosen from among five lawyer groups, including the Tennessee Association for Justice (aka the Tennessee tort lawyer lobby), the Tennessee Bar Association, the District Attorneys General Conference and the Association of Criminal Defense Lawyers. The commission selects a slate of three judges from which the Governor can pick.
Instead of diluting the influence of politics over the courts, the system has aggravated it so much that even Democratic Governor Phil Bredesen has had enough. The commission has sent him the same nominee repeatedly in an effort to shoehorn a favorite son onto the state's highest courts. Concerned that the best candidates weren't put forward, the Governor in 2006 said he was "taken aback by the game-playing" of a commission "trying to force people down my throat."
Mr. Bredesen now says he'll veto any renewal of the plan that doesn't make fundamental changes, including opening the commission's deliberation to public view. Also leading the reformers is Senate Speaker Ron Ramsey, who has insisted that without changes he will let the Tennessee system expire. But he'll need to look both ways and maintain his resolve against an onslaught. The Tennessee Bar Association is making maintaining the current system its No. 1 legislative priority. A recent effort to reform the Missouri plan in Missouri failed amid blowback from the trial bar.
Tennessee has one advantage over Missouri: The decades-old Tennessee judicial selection plan is considered by many to be against state law. According to the state constitution, all judges must be elected by a direct vote of the people, a requirement that few consider legitimately met by Tennessee's uncontested "retention" elections. Though lawmakers proposed amending the constitution to make the current selection method legal, Tennessee voters rejected the amendment in 1977.
The Tennessee plan was conceived as superior to the political brawls of states that elect their judges directly. But special interests have ended up more empowered than ever in a system less transparent and accountable. Trial lawyers are running the selection process behind closed doors. Isolating courts completely from the reach of politics is a pipe dream, but keeping judges democratically accountable (through election, or nomination and confirmation) is the best way to keep the system honest and serve all citizens.
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Texas courts' credibility problem – [Editorial]
The Dallas Morning News
May 9, 2008
The reputation of our state's judiciary has been tarnished for years. As then-state Supreme Court Chief Justice Thomas Phillips told the Legislature all the way back in 2001, when judges owe their jobs to an electoral system dominated by political parties and big campaign donors, their judicial objectivity comes into question.
Nothing underscores this point better than the May 2 Texas Supreme Court decision favoring Perry Homes over homeowners Jane and Robert Cull. The court's decision, overturning two lower courts' rulings to compensate the Culls for a defective home, probably will be debated for years.
But what isn't debatable is that the founder of Perry Homes, Bob Perry, is a major donor to the campaigns of the Supreme Court's justices. He, his family and their political action committees have donated more than $250,000 to the nine justices – all Republicans – including those who dissented in the Cull case.
The justices may have used flawless legal analysis in ruling against the Culls. That's not the point. In the public's eye, their decision is tainted by the fact that they owe their elected positions, at least in part, to Mr. Perry.
He isn't the only big donor with business before the court. Texas trial lawyers who argue directly before the justices also have been huge contributors.
And to add to the credibility problem, three Supreme Court justices are fending off allegations that they abused their campaign funds. And a report yesterday by the judicial watchdog group Texas Watch criticized the court for relying too heavily on anonymous opinions, which effectively reduces the panel's public accountability.
The method of electing Texas judges – from the Supreme Court all the way down – is badly in need of modernization. Campaign donations from special interests should have no place in an independent judiciary.
The state needs a system in which the governor appoints judicial nominees by merit, with Senate confirmation, and voters regularly decide whether or not to retain them. That would help remove partisan politics and make court decisions less suspect.
That's one of several options put forth by Mr. Phillips in 2001. His argument made sense then, and it's no less valid today.
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Supreme Court races will renew conflicts
By Sid Salter, Clarion Ledger (Mississippi)
May 10, 2008
Mississippians have rarely been of one mind about judicial elections - and that problem didn't start yesterday.
As I've noted in prior writings on this subject, we've been arguing about the method of choosing judges longer than perhaps any single political question other than race relations. Since the state's first constitution was drafted in 1817, Mississippians have been arguing over whether to appoint or elect judges.
In 1832, a constitutional convention fight erupted between three groups - the "aristocrats" who favored the appointment of all judges, the "half hogs" who wanted to elect some judges and have others appointed, and the "whole hogs" who wanted all judges elected.
Voting 'whole hog'
History shows that the "whole hogs" won in 1832 and Mississippi has been electing judges ever since. Of the state's current 545 judges from the Supreme Court to the Municipal Courts, only municipal judges are appointed.
The Civil War and Reconstruction would produce a return to appointive judgeships for a time. The state returned to a full elective judiciary in 1915.
But as late as 1966, campaign contributions to judicial candidates could only come from lawyers and the amount was limited to $50 per lawyer.
Today, such limits are circumvented by special-interest spending that makes a mockery of the state judicial campaign finance laws. And the special interests campaign finance chicanery exists on both sides of the philosophical fence - pro-trial lawyer and pro-business/medical interests.
Since 2000, judicial elections in Mississippi have degenerated into spending contests between the state's business/medical community and trial lawyers. In Mississippi's 2004 judicial elections, $2.56 million in campaign funds was raised to elect three state Supreme Court justices.
Some 67 percent of those 2004 funds were donated either by lawyers or pro-business and medical groups, according to the Institute for Money in State Politics.
A national study of the campaign finance of judicial elections suggests that the 2004 elections represented a "tipping point" in which special interest intervention into the elections could threaten the future integrity of the courts.
In the 2008 Mississippi judicial elections, Mississippi Supreme Court Chief Justice Jim Smith faces two challengers in Ceola James of Vicksburg and Jim Kitchens of Crystal Springs.
Incumbent Supreme Court Justice Oliver Diaz faces Randy Pierce of Leakesville and Paul Newton Jr. of Gulfport.
Justice Ann Lamar, appointed to fill the unexpired term of former Justice Kay Cobb, faces fellow Justice Chuck Easley for her Northern District Place 1 seat on the court. Justice Easley is also seeking election in the Northern District Place 2 post he currently holds.
Easley faces the challenge of Court of Appeals Judge David Chandler.
Exactly how Easley plans to serve in both posts on the Supreme Court remains a mystery, but it’s clear that Easley's shenanigans and four contested Supreme Court seats will be enough to renew the campaign finance wars between the state's trial lawyers and the business/medical community.
Peace in the Middle East, it seems, would be easier to achieve than peace between these groups.
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Letter from 50 Bar Presidents Seeks Increased LSC Funds, Cites ‘Justice Gap’
By Debra Cassens Weiss, ABA Journal.com
May 13, 2008
Bar presidents from all 50 states are asking Congress to increase funding for the Legal Services Corp. to at least $400 million in fiscal 2009.
A letter from the bar presidents asks the relevant House and Senate subcommittees “to take an important step forward in closing the current justice gap” by increasing funding. The letter was also signed by the National Conference of Bar Presidents and the National Association of Bar Executives. LSC funding was initially set at $390 million for fiscal 2008, but it was reduced to $350.5 million under a year-end consolidated appropriations act, the letter says. It cites a 2005 study that found one out of two people who qualify for and seek help from LSC-funded programs is turned away because of a lack of resources.
Meanwhile, a new survey of 50 lawyers from the Utah Bar Association found a growing concern about access to justice, the Salt Lake Tribune reports. The survey found 31 percent of the lawyers agreed that the top problem facing the justice system is "only the rich are getting results; ... the poor and middle class can't afford legal services."
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Battling over justices – [Editorial]
May 08, 2008
BACK IN January, U.S. Sen. John McCain of Arizona was asked about the type of judges he would appoint to the U.S. Supreme Court.
"It's not social issues I care about," Sen. McCain said. "It's the Constitution of the United States I care about."
Sen. McCain's answer turned out to be a good preview of the speech he gave Tuesday at Wake Forest University in which he explained his judicial philosophy.
The news media characterized the Wake Forest speech as a calculated move to appeal to social conservatives. But the presumptive GOP presidential nominee did not promise that he would appoint judges who would deliver the political results desired by the religious right, the secular left or any other interest group. Quite the opposite: He wants to put judges on the federal bench who will interpret the Constitution and refrain from political activism.
In describing his ideal judge, Sen. McCain pointed to two current members of the Supreme Court: Chief Justice John Roberts and Justice Samuel Alito.
President Bush picked Chief Justice Roberts and Justice Alito based on their knowledge of constitutional law and their respect for the separation of powers. Both have demonstrated commendable intellectual modesty and restraint in deciding cases, becoming role models for jurists who reject the notion that the Supreme Court should instigate social change.
As Sen. McCain observed, the two Democratic presidential contenders definitely would not appoint Supreme Court justices in the mold of John Roberts and Samuel Alito.
Sen. Hillary Clinton and Sen. Barack Obama voted against both justices. Their votes reflected the views of social liberals in the Democratic Party who believe the federal courts should push well beyond the boundaries of the Constitution in deciding cases.
The left doesn't want judges to serve as referees a term used frequently by Chief Justice Roberts. Democratic Party activists believe judges should play a key role in shaping policy.
Sen. McCain was right when he said the debate over the proper role of judges will be "one of the defining issues of this presidential election."
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Student jury deadlocked
By Lisa Tindell, The Brewton Standard
May 4, 2008
The 12-member jury made up of seniors from T.R. Miller and W.S. Neal High Schools found themselves deadlocked in a case heard Friday during Law Day activities at the Escambia County Courthouse.
More than 100 other seniors from the two schools sat in the courtroom as their peers were declared “fact finders” by presiding Judge Bradley Byrne.
In opening remarks, Bill Stokes, president of the Escambia County Bar Association explained the privilege the students were being given through the program.
“Today, some of you will serve on a jury that will decide an actual case,” Stokes said. “Our hope is that your part in this process will impress upon you your rights and how our legal system works.”
Jurors were called to the jury box to hear a case against Donald Henry Odom who was charged with unlawful possession of a controlled substance.
Jurors heard from Escambia County Assistant District Attorney Todd Sterns, who presented evidence connected with the charges against Odom.
Defense Attorney Jeremy Hawsey fought to maintain the innoncence of his client.
After nearly two hours of evidence had been presented, Judge Bradley Byrne charged the jury with their duties to reach a verdict in the case.
“Mr. Odom is innoncent until proven guilty,” Hawsey told the jury. “The state has the burden to put enough evidence into your mind to have you find him guilty.”
Jurors deliberated for just under an hour, before discovering a unanimous decision could not be reached.
“This is not failure on your part as a jury to declare you are deadlocked,” Byrne told the jurors. “This does happen in cases from time to time. At this point, the case is declared a mistrial. Mr. Odom will face another jury at a future date and the case will be reheard.”
Samuel Crosby, president of the Alabama State Bar Association, also addressed the students during Friday's program.
“There are 15,762 lawyers who are members of the State Bar Association,” Crosby told the students. “It is our mission to improve the administration of justice in Alabama.”
Crosby praised the Law Day program in Escambia County which is sponsored by the county's Bar Association members.
“This circuit is the model for the state Law Day program,” Crosby said. “The decades-long program here is recognized by the American Bar Associations. I commend the Escambia Bar Association for having this program. Most programs present a mock trial. Today we are presenting an actual case.”
Byrne commended members of the court system in place for Escambia County in his address to the students.
“This county has quality people working for our court system,” Byrne said. “You are lucky to have these people here working for you to see that justice is served.”
Byrne further explained the role of the students for the case at hand.
“Your role as jurors is important,” Byrne said. “You are the fact-finders in this case. It is your decisions on the law and on the facts that will determine the future of a defendant.”
The two-day county Law Day began Thursday with students from Flomaton High School, Escambia County High School and Escambia Academy in Atmore. The trial in the first day of the program also ended in a mistrial.
Michael Sadler of Atmore was charged with driving under the influence. Three of the 12 jurors could not agree with their classmates. Judge Bert Rice declared the mistrial in that case.
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‘Heroes' receive will-drafting services
By Stephanie Taylor, Tuscaloosa News
May 2, 2008
TUSCALOOSA | At 29, Rusty Selman has never given much thought to making a will.
The Tuscaloosa Police officer and his wife are expecting a baby in June. When he learned that local attorneys would be drafting wills for free this week, he thought now would be a good time to take care of it.
The Tuscaloosa County Bar Association sponsored Wills for Heroes this week, during which attorneys volunteered to help police officers, sheriff's deputies and firefighters with wills and estate planning free of charge.
'It's great,' said Selman, who works as the school resource officer at Tuscaloosa Middle School. 'Now I can have peace and comfort that this is taken care of, even though it's not something I thought of before.'
The attorneys prepared documents for 20 first-responders Thursday morning, and expected to see 20 more Thursday afternoon. Tuscaloosa County Bar Association President David Rains said they hoped to serve close to 90 by this afternoon.
Each first responder had a will, a power of attorney and a health-care directive drawn up — services that would normally cost around $1,000.
The state's program is modeled after a similar effort started by South Carolina lawyer Anthony Hayes, who noted that very few of the law enforcement officers and firefighters killed on Sept. 11 had wills. The nature of their work makes it important for first- responders to have wills and health care directives, Rains said. 'They put their lives on the line every single day,' he said.
'The importance of these types of documents are even more important for first-responders.'
Rains said that studies show that only 10 to 20 percent of people in law enforcement and fire-fighting have wills.
'They devote their lives to serving others, and of putting themselves second,' Rains said.
'I think that might be why a lot of that segment of society does not have a will.'
The first responders who participated completed a 20-page questionnaire before their visit with attorneys. It took between 30 minutes and an hour for each appointment.
Rains hopes to hold another clinic in September.
'The Bar Association is honored to have the privilege of providing such a vital community service to the men and women who have dedicated their lives to helping others,' he said.
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Courts may face layoffs if funds low
ERIC VELASCO, The Birmingham News
May 2, 2008
Alabama's court system employees could face substantial layoffs if a budget proposal before the Alabama Senate is not fully funded, says Chief Justice Sue Bell Cobb.
The court system could lose 300-600 employees, up to 27 percent of its work force, according to a statement Wednesday by Cobb and Callie Dietz, the state's administrative director of courts. That could lead to a potentially catastrophic slowdown in the administration of justice in civil, criminal and appellate courts, they said.
Full funding in the state's budget plan depends on the General Fund getting about $173 million in royalties from companies pumping offshore natural gas as well as disputed damages from a lawsuit.
Lawmakers say they are not sure if any of the money will be available when the new budget year begins Oct. 1. They have set aside $173 million as a conditional appropriation in the state's proposed $2.011 billion General Fund budget.
Trial courts in Alabama's 67 counties and its three appellate courts still are reeling from staffing reductions in 2003, caused by budget cuts after voters rejected Gov. Bob Riley's proposed Amendment 1 statewide tax increase.
Nearly 200 court employees, mostly bailiffs and court clerks, were laid off then. Several counties, including Jefferson County, came up with annual subsidies to retain most of the furloughed employees in their courts.
Cobb and Dietz said the $159 million the court system would receive if the new budget is fully funded would be enough to maintain the current work force of nearly 2,200.
Up to 584 employees would lose their jobs if the court system loses the entire $27.4 million conditional appropriation, the officials said. A projected 312 jobs would be cut if only half of the conditional money comes through, they said.
The discrepancy in the number of layoffs is due to differences in salaries, said Keith Camp, spokesman for the Administrative Office of the Courts.
About $110 million of conditional funding statewide would come from capital gains in royalties paid to the Alabama Trust Fund by companies pumping offshore natural gas. But lawmakers say they can't depend on any of that money because of the stock market downturn.
A further $63 million in conditional funding would come from damages awarded to the state in a lawsuit against ExxonMobil. A Circuit Court judge recently ruled that money should go to the Alabama Trust Fund instead of the General Fund, but the state has appealed.
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Ex-justice urges judges not to take the money if they run
By ROCHELLE OLSON, Star Tribune (Minneapolis, MN)
May 2, 2008
Judicial independence is the crown jewel of democracy, but easier to damage or destroy than most can imagine, retired U.S. Supreme Court Justice Sandra Day O'Connor said at a luncheon Friday at the University of Minnesota's Humphrey Institute of Public Affairs.
The topic of her speech: the destructive influence of money in judicial elections.
She decried an influx of special-interest money across the country, including in Wisconsin. The "appearance of outside influence on judges has to be avoided," she said. "Judges should not be competing against each other based on the popularity of their decisions."
The lunch was sponsored by Minnesotans for Impartial Courts, the League of Women Voters and the Center for the Study of Politics and Governance at the institute. The courts group emerged after a 2005 U.S. Supreme Court ruling scrapped Minnesota rules barring judicial candidates from voicing views on political or legal matters. The ruling allows party endorsements and discussions of candidates' thoughts on potential court matters, such as abortion.
"Judges are not ordinary politicians. Their job is not to interpret the will of the people," she said.
Since her retirement in 2006, O'Connor has advocated an independent judiciary and against campaigns in which "interest groups choose a sympathetic candidate and bankroll the campaign."
Her audience included all the state Supreme Court justices as well as former Gov. Al Quie, former Secretary of State Joan Grow, former First Lady Jane Freeman, current First Lady Mary Pawlenty and former and current Senate majority leaders Roger Moe and Larry Pogemiller.
O'Connor was the first woman appointed to the court in 1981. In formal photographs, she often wore a frilly neck scarf, giving her a staid appearance. In person, her voice has a gentle western twang and she projects down-home warmth.
One of the handful of questions she received was how her upbringing on an Arizona ranch influenced her as a jurist. "On a ranch, it doesn't matter your color or gender, but there's a certain amount of work to be done," she said. If the work is done well, you will not be complimented. If it is done poorly, you will hear about it, she said.
Often, a solution to a problem on a ranch isn't elegant but serviceable. She compared that to her court writings, saying "maybe some of the things I said weren't beautiful," but she said she hoped the principles were sturdy.
Also in the audience were members of the Impartial Courts group, which proposed that judges initially be appointed by the governor after a commission nominates candidates. Another commission would evaluate judicial performance. Voters would decide whether to retain judges. A rejected judge would be replaced by a gubernatorial appointee.
Proponents of the plan say it would allow Minnesota to avoid multimillion dollar judicial campaigns financed by special interests. Although legislation was introduced to make the changes, it hasn't gained traction in the 2008 legislative session.
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Reform Tennessee's system for judicial picks: The federal system for appointing appellate judges would work just fine for state government, too – [Editorial]
Monday, May 5, 2008
With the legislative session winding down, lawmakers are debating whether to change the way Tennessee's Supreme Court and appellate judges are selected. Lt. Gov. Ron Ramsey has been pushing for several reforms to the so-called Tennessee Plan, while House Speaker Jimmy Naifeh has indicated he's pretty satisfied with the status quo.
Ramsey is right in calling for change. The trouble is, Ramsey's proposal wouldn't go far enough.
Under the current system, when there's a vacancy on the Supreme Court or an appellate court, the Judicial Selection Commission must screen the applicants and forward the names of three potential nominees to the governor.
The governor can reject those names and ask the commission for three more. Having done so once, though, the governor is bound to select one of the candidates from the commission's second list.
In theory, the commission's involvement is supposed to take politics out of the process. The reality can be quite different. The commissioners can have their own political agendas, but unlike the governor, they're not directly accountable to the voters.
When Supreme Court Justice Adolpho Birch retired, for example, it took 10 months of wrangling before Gov. Phil Bredesen picked a replacement. It took so long because the commission, rather than nominating several strong candidates without showing a preference for any of them, appeared to be trying to politically coerce Bredesen into picking one particular candidate.
There is a better way to handle these extremely important appointments.
In federal government, the president nominates Supreme Court justices and appellate court judges, who then must be approved by the U.S. Senate.
Allowing the governor to nominate state court judges, subject to confirmation by the state Senate, would provide public accountability and political checks and balances.
Under such a model, the commission could still have a role in recommending candidates to the governor. But the governor should have more flexibility about what to do with the commission's advice.
Such a system would also be compatible with the state's current practice of holding merit retention elections after judges have served a period of time.
In a merit retention election, voters cast "yes" or "no" votes on the question of whether a particular judge should continue to serve.
That provides some public accountability, without making the courts as politicized as they might become under a system of contested judicial elections.
Not all of Ramsey's ideas are bad.
He favors having the commission meet in public.
And he favors reducing the number of positions on the commission that must be held by lawyers. (While lawyers are the group that deals most directly with judges, our court system should reflect the interests of ordinary folks, too.)
The bottom line, though, is that the commission currently wields influence that's out of proportion to its accountability to citizens. That needs to change.