Alabama State Bar sets up 'senior' section for baby boomers
by Lauren B. Cooper, Birmingham Business Journal
September 23, 2009
The Alabama State Bar said it has created a Senior Lawyers Section for retiring lawyers interested in remaining active in the group and the industry.
In a news release, the bar estimates over the next 10 to 15 years a massive number of lawyers will leave their full-time practice positions for retirement, as about 32 percent of its membership is 55 or older.
And as many professionals reinvent themselves in retirement, the bar hopes to capture some of that brain trust through the new section for members to serve as mentors, board members of charitable organizations, pro bono attorneys, educators, writers and counselors.
“By creating the Senior Lawyers Section, lawyers leaving full-time, often long-term practices can still remain active in the law and committed to their communities,” said Thomas J. Methvin, state bar president.
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Judicial Campaign Speech Case May Be Destined for Supreme Court
Marcia Coyle, The National Law Journal
The challenger's ad in the 2008 race for a judgeship on the Wisconsin Supreme Court delivered the classic one-two punch:
Side-by-side, black-and-white head shots of two black men -- one, the first African-American to sit on the state high court; the other, a twice-convicted rapist. With eerie music in the background and the head shots fading in and out, the television narrator said, "Louis Butler worked to put criminals on the street. Like Reuben Mitchell, who raped an 11-year-old girl with learning disabilities. Butler found a loophole. Mitchell went on to molest another child."
The ad's sponsor, Michael Gableman, unseated Butler in the election. But now, more than a year later, he could lose his seat because of that ad.
Was the ad true or false? Did the First Amendment protect it?
A state court panel recently heard arguments on those questions from Gableman's lawyers and the Wisconsin Judicial Commission, which has charged the justice with lying and violating the so-called misrepresentations clause in the state's judicial code of ethics.
Many state ethics codes and laws have such clauses, which restrict false and misleading statements about an opponent's background and qualifications. As state judicial elections become nastier, more expensive and more important to special interest groups, complaints regarding alleged misrepresentations are on the rise, according to a number of election scholars and litigators. State courts, often faced with resolving such complaints, struggle to define when a candidate has crossed the line between protected and unprotected speech in campaign ads and literature.
The Gableman case is being watched closely for where the Wisconsin Supreme Court ultimately will draw the line.
And in the shadows of the tug-of-war over the ad's truthfulness is a potential U.S. Supreme Court challenge if Gableman loses -- a challenge raising the question of just how different judicial elections are or should be from other elections.
"There's ongoing discomfort with judicial elections, so there's a desire to make them better elections, less tainted by self-interest," said Richard Briffault of Columbia Law School. "But there's another view that, if you're going to have a judicial election, it should be run like any election -- open, freewheeling. Courts are trying to work out this tension."
THREE OUT OF FOUR
Before becoming a justice, Louis Butler was a public defender. He handled the appeal of convicted rapist Mitchell from 1985 to 1988. Butler successfully argued before an appellate panel that the trial court improperly admitted certain evidence, which likely prejudiced the jury. The panel ordered a new trial, but the state Supreme Court reversed, holding that the error did not affect the trial's fairness.
Butler had nothing further to do with Mitchell, who stayed in prison until his release on parole in 1992. Three years later, Mitchell was convicted of raping another child.
James Alexander, counsel to the Judicial Commission, contends the false statement in Gableman's campaign ad is that Butler was responsible for Mitchell's release and subsequent crime. The so-called "loophole," he adds, had nothing to do with Mitchell committing another crime, and Gableman knew it because he acknowledged studying the case and the ad.
"The advertisement is carefully crafted to consolidate four statements that are, arguably, literally true into one lie," Alexander argues in the commission's brief. "When the sentences are viewed in context and given their ordinary meaning, they convey a false message concerning the conduct of Louis Butler, causing the viewers to question the safety of Wisconsin families if Louis Butler is re-elected to the Wisconsin Supreme Court."
That lie, he charges, violates a section of Wisconsin's misrepresentation rule that states that a candidate for judicial office shall not knowingly, or with reckless disregard for the statement's truth or falsity, misrepresent the identity, qualifications, present position or other fact concerning the candidate or an opponent. Gableman's potential discipline ranges from a reprimand to removal.
Gableman's counsel, James Bopp Jr. of Bopp, Coleson & Bostrom in Terre Haute, Ind., said the commission has admitted that three of the four sentences in the ad are true. The only one contested, he said, is that Butler worked to put criminals on the street.
"Certainly a criminal defense lawyer may not like to be talked about in that way, but that's the end result when they are successful," he said.
Because there is no statement of fact regarding Butler that is "objectively false," Gableman cannot be punished under the rule, argued Bopp. Neither the state rule nor the First Amendment, he added, "allows the government to punish political speech on the ground that it contains an allegedly false implication."
Judicial campaign speech has been a "white-hot" area of litigation since the U.S. Supreme Court's 2002 ruling in Republican Party of Minnesota v. White, said Charles Hall of Justice at Stake, a nonpartisan group working for fair and impartial courts.
In White, the 5-4 majority struck down on First Amendment grounds a state judicial canon prohibiting judicial candidates from announcing their views on contested legal and political issues. Subsequently, a number of state courts struck down other canons, such as those prohibiting candidates from personally soliciting contributions or endorsements. They relied on White and some language in the decision indicating that, if states choose to elect judges, then they must take both the good and bad in such a process.
Even before White, state and federal courts were troubled by misrepresentations clauses, particularly if they punished speech that was not intentionally false, according to Columbia's Briffault. But most courts and legislatures in the past decade have narrowed those clauses to require knowing or reckless disregard for a statement's truth or falsity.
Are the clauses vulnerable to constitutional attack? Yes, but they can withstand it, said Briffault and James Sample of Hofstra University School of Law, formerly an attorney with the Brennan Center for Justice at New York University School of Law.
Sample said the states have a compelling interest in protecting the integrity of the judicial system -- the Wisconsin commission's defense to Bopp's First Amendment attack on applying the clause to his client.
Briffault, however, said it's not clear that the interest in "integrity" is unique to the judicial elections and not to all elections. The better defense of the clauses, he said, may be that they advance the public interest in informed judicial elections. "If speech is clearly and knowingly false, there is no value to it," he said.
But constitutional problems do arise when the discipline or sanction for speech turns on the interpretation of the listener -- what the words implied or conveyed, rather than their truthfulness, said Richard Esenberg of Marquette University Law School said.
"You can't just read the sentences here out of context, but my concern is how far down that road are we going to go before running into trouble, where we unduly burden or potentially chill protected speech," he said. "Most campaign ads are undertaken in bad faith and often do imply things that are false, or at least not the whole story."
Bopp disagrees with Hall and others who see the clauses as the judicial equivalent of libel laws.
Libel law requires a false statement that is defamatory, not just a false statement, he said. "There has to be some harm to the individual. With these clauses, the false statement may or may not be harmful but it's still punished. I think that's troubling."
What he called the "no-harm conundrum" has pushed him, he said, toward the view of the Washington Supreme Court in its 2007 decision, Rickert v. Washington. That court struck down a state law prohibiting any person from sponsoring, with actual malice, a false political ad about an opponent. The court said the people, not the state, are the "final arbiters of truth" in political debate.
If the Wisconsin Supreme Court punishes Gableman, said Bopp, it will have created a split with the Washington court that would provide a basis for U.S. Supreme Court review.
Citizen Action of Wisconsin filed the original complaint about the ad with the judicial commission, said Robert Kraig, program director, noting the ad also had a "racial tinge to it."
Thomas Basting, president of the State Bar of Wisconsin during the election, said the bar's judicial integrity campaign committee also was "highly critical" of the ad.
The Gableman-Butler race was the most expensive judicial election in the state's history. Special-interest groups spent about $4.8 million of the $6 million total.
"I think the law is eventually going to say that, when you have a judicial election, it's just the same as any partisan election," Basting said. "That's why many of us in Wisconsin, including me, have come to the conclusion we need to take a hard look at the way we choose our judges."
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Obama to Speed Up Tort Reform Tests, but Doctors Want More
By Ceci Connolly, Washington Post
September 18, 2009
One day after physicians suffered a pair of setbacks in a health-care bill unveiled by Sen. Max Baucus (D-Mont.), President Obama moved Thursday to ease the pain by accelerating a $25 million program aimed at softening the pinch of medical malpractice lawsuits.
For months Obama has wooed the nation's doctors, ranked among the most popular professionals in the country, and it appeared the courtship was paying off. The influential American Medical Association promptly endorsed House legislation that includes Obama's proposal to increase Medicare physician payments by $230 billion over the next decade.
But tensions flared again this week when doctors discovered that the Baucus bill does nothing substantively to address malpractice costs and offers them only modest gains on the high-priority issue of Medicare reimbursement.
"The feeling of most doctors is that what's being proposed is not adequate," said Peter Levine, president of the Medical Society of the District of Columbia. He called Obama's $25 million in grants "smoke and mirrors" and said Baucus refused to resolve a problem in the Medicare payment formula because it would have raised the price tag on his bill.
Physicians and some Democratic aides said Baucus, chairman of the Senate Finance Committee, sidestepped the malpractice issue at the behest of Senate Majority Leader Harry M. Reid (D-Nev.), a lawyer who received $1 million in campaign contributions in the first half of 2009 from lawyers and law firms, according to the Center for Responsive Politics.
Reid spokesman Jim Manley said that in a conversation, the Democratic leader "simply reminded Senator Baucus that the finance committee doesn't have jurisdiction over medical malpractice issues." There is "no relationship" between the donations Reid receives and his work on health-care reform, Manley said, adding that Reid has expressed interest in the idea of state review boards in malpractice cases.
Trial lawyers and doctors have long been at odds -- over the rights of injured patients, the impact of malpractice insurance and even their political preferences. Historically, lawyers have favored Democratic politicians, while doctors have leaned toward Republicans. During the 2008 election cycle, the American Association for Justice, formerly the American Trial Lawyers Association, gave more than $1 million to federal candidates, with just 3 percent going to Republicans, campaign finance data show.
The two sides disagree vehemently over how patients should be compensated for medical errors and how doctor behavior is affected by the threat of litigation. Physicians report routinely performing additional tests and procedures to protect themselves from lawsuits. The cost of "defensive medicine," which is subjective and hard to measure, has been estimated in the hundreds of billions of dollars.
Ronald Sroka, the immediate past president of the Maryland State Medical Society, said that "one of the things that make us err on the side of doing more tests is the fear of being sued."
Several government studies have found a minor connection between medical liability and rising health care costs. About 1 percent of the nation's $2.5 trillion health tab is directly attributable to the malpractice system, said William Sage, a physician and professor of law at the University of Texas at Austin.
Some physicians said that in states where legislatures have enacted laws limiting damages, liability insurance premiums have been brought under control.
But Linda Lipsen, a spokeswoman for the lawyers group, said there is no solid evidence documenting either lower insurance premiums for the physicians or lower costs to the patients.
"The way to stop medical malpractice is to provide enhanced patient safety in hospitals," said Lipsen, noting that an estimated 98,000 patients die unnecessarily in hospitals each year because of medical mistakes.
The Testing Stage
Following Thursday's announcement, the administration will soon begin providing grants of up to $3 million to states and health systems to test new approaches to medical liability. Federal officials will conduct a "review of what works," searching for innovative ways to improve physician practices with the goal of reducing costly and dangerous medical mistakes.
Obama, who has sided with trial lawyers in opposition to the caps, first mentioned the idea of demonstration projects in his address to a joint session of Congress last week.
"I don't believe malpractice reform is a silver bullet," he said, "but I've talked to enough doctors to know that defensive medicine may be contributing to unnecessary costs."
It has not been lost on the White House that the AMA has opposed several previous health-care reform efforts, including the creation of the Medicare program and President Bill Clinton's failed overhaul.
Shortly after the 1992 election, as Clinton prepared to tackle health care, the association launched a $4.5 million advertising campaign warning that "national health insurance would lead to federal control of health care."
Sage said Obama's instinct to keep doctors at the bargaining table makes sense in the context of his broad effort to dramatically revamp how medicine is practiced in this country.
"If changing the malpractice environment can make them eager participants in health-care reform, we can do a whole lot of good in the country," he said. "That's the big payoff."
For two days, AMA President J. James Rohack has declined interview requests on the Baucus bill, instead issuing a statement that the organization will "stay engaged."
But other prominent AMA members complained bitterly about both the Baucus approach and the administration grants.
"It's all incredibly disingenuous," said the District medical society's Levine. "The president got up and gave a speech to the nation and said we need action now. But when it comes to medical liability reform and tort reform, it needs to be studied. The whole concept is so hypocritical."
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Cash Squeeze Said to Deny Legal Aid to Poor
By JOHN SCHWARTZ, The New York Times
September 29, 2009
Nearly a million poor people continue to be denied representation in the nation’s courts because legal aid clinics lack sufficient financing, a federally supported legal agency reported Tuesday.
“There still exists a substantial justice gap in this country,” said Helaine M. Barnett, president of the nonprofit agency, the Legal Services Corporation, which receives appropriations from Congress to support more than 900 legal aid offices for low-income clients in civil cases across the country.
Many programs paid for by the Legal Services Corporation say they face rising requests for help. The nation’s financial crisis has placed new pressure in particular on legal specialties like foreclosure, where few lawyers who contribute their services free of charge have great expertise and where legal aid offices turn away two people for each one they can help.
The findings are in a new report from the organization that will be available Wednesday morning on its Web site, lsc.gov. Legal aid clinics will have turned away half their potential clients this year, or about a million people, the report says. The statistic has changed little from the last time the issue was studied, in a 2005 report by the organization.
Michael Waldman, director of the Brennan Center for Justice at the New York University School of Law, said the lack of access to the courts by the poor and the near poor was “increasingly acute.” The Brennan Center will publish a report next week that focuses on the scarcity of lawyers for those facing foreclosure. People without means, Mr. Waldman said, “lose their homes” and “lose their kids because they don’t have access to a lawyer that the rest of us take for granted.”
Though the Legal Services Corporation received an increase in Congressional financing for the current fiscal year, to $390 million from $350.5 million last year, the additional money made up for only part of the reduction in financing from state government and private sources, which have been squeezed by the recession.
“We are holding our own, but just barely,” said John A. Constance, the agency’s director of government relations and public affairs. “Increased federal dollars are doing nothing more than filling the space left by state funding.”
Meeting the needs of those currently turned away would require a doubling of federal aid, with commensurate increases from states and private groups, Ms. Barnett said, along with an increase in the contribution of free services from lawyers in private practice.
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Poll Tests Public Attitudes About Supreme Court
David Ingram, The National Law Journal
Nine years after the U.S. Supreme Court stopped the counting of ballots in Florida, its decision in Bush v. Gore appears to have had some lasting impact on how the public views the justices.
A new poll from C-SPAN asked voters whether the ruling affected their view of the Court. A substantial minority, 29 percent, said that the ruling did. And not surprisingly, those who said so saw the ruling as incorrect, as a sham or as an area the justices should have avoided altogether.
C-SPAN released the poll results Thursday, as it prepares to air a series of interviews with the justices next month.
About 21 percent of the 801 voters polled said they have visited the Supreme Court, and 88 percent said that the Court has an impact on their "everyday life as a citizen."
Knowledge about the Court is mixed, the poll suggests. Seventy-nine percent correctly answered that there is no mandatory retirement age for justices, but only 52 percent -- little better than a coin flip -- correctly said that there is no requirement that the chief justice be a lawyer. Thirty-seven percent correctly said that there have been three female justices, while 39 percent correctly said that there have been two African-American justices.
Asked about the operations of the Court, a majority opposed lifetime appointments for justices and supported televising oral arguments. (C-SPAN has been a vocal proponent of the latter.)
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Judicial pay disparity drains talent from federal bench - Vacancies are rising as district judges reluctantly resign lifetime appointments to better provide for their families
By Carol J. Williams, The Los Angeles Times
September 27, 2009
With seven children to care for and a caseload that quadrupled this past year, U.S. District Judge Stephen G. Larson says he can no longer afford his prestigious lifetime appointment.
The 44-year-old, named to the U.S. District Court for the Central District of California less than four years ago, is the latest defection in an accelerating nationwide trend toward leaving the federal bench long before retirement age to earn more money in private practice.
Vacancies in the federal judiciary are mounting, and too few of the best legal minds are stepping forward to replace them, judicial analysts say. They attribute what they see as a troubling phenomenon to Congress' failure for nearly two decades to pass a significant pay increase for federal judges or to expand their numbers to handle a soaring caseload.
Chief Justice John Roberts of the U.S. Supreme Court has been warning of a "constitutional crisis" and threat to judicial independence if stagnant salaries drive judges out of positions long considered the pinnacle of a distinguished legal career.
"The sad reality we now face is that, in at least some situations, active judges at the peak of their judicial careers must resign to support their families," Chief Judge Audrey B. Collins of California's Central District said after Larson's announcement. The district covering Los Angeles and six other counties is the nation's most populous federal trial court, serving 19 million people.
Even California state courts are feeling the pay pinch, despite salaries and benefits significantly higher than those for federal judges. In Los Angeles County Superior Court, a judge takes home $249,413 a year with locally paid extras, or 47% more than a federal district judge.
"What that says is that the federal judges are way underpaid, and everybody knows it," said Presiding Judge Charles "Tim" McCoy of the Los Angeles County bench. The county Superior Court doesn't face as dire a situation in attracting and retaining judges as the federal judiciary, McCoy said, but the pressures are mounting there too. McCoy said one trial judge left for private practice late last year and a second just informed him he'll be resigning to earn enough to pay a college-bound child's tuition.
Neither federal nor state judges' salaries can be cut, due to constitutional protections. But the vast majority of California's 1,711 judges have volunteered to forgo a day's pay each month to share in the sacrifice imposed by furloughs that close state courts the third Wednesday of each month.
Scholars of the judiciary see uncompetitive pay as a disincentive to joining the federal bench, but they cite other reasons as well: withering confirmation proceedings that expose nominees to intense and often politically charged interrogations, tedious cases decided in settlement conferences instead of jury trials, workloads that grow larger with each colleague's departure and the slowing pace of finding replacements.
Aside from the high-profile selection of Sonia Sotomayor as the newest Supreme Court justice, President Obama has made only 17 nominations to 94 vacancies on the federal bench, or 18%. That compares with President George W. Bush's nominations to 44% of open judgeships during his first eight months in the White House.
"They're having a tough time finding people," said Russell Wheeler, a Brookings Institution scholar who studies judge selection. "Those advocating for salary increases say that soon it will be difficult to get the best talent, which is code word for saying they are already not getting the best applicants."
District judges earn $169,300 a year, and those on circuit courts of appeal get $179,500. Even Roberts, the top judge in the 876-person federal judiciary with a salary of $217,000, earns less than a Los Angeles County judge. The Administrative Office of the U.S. Courts calculates that the buying power of those federal salaries has fallen about 25% in the last four decades, while the national average for real wages has increased 18%.
Larson is the third judge lost from California's Central District over the past year, and a fourth has informed the chief judge that she plans to resign to pursue private judging in March. Reacting to Larson's decision, Collins expressed concerns about compounding influences as each departing judge leaves behind a caseload that has to be redistributed among those left on the bench. That is an especially severe problem in the district's eastern sector, where Larson serves, as only one other judge is assigned to that courthouse. Those with business before the court in San Bernardino and Riverside counties may have to travel to Los Angeles or Santa Ana to have their cases heard, Collins said.
Although retention is an acute problem in the costly cities of California, it is a problem across the country. The number of judges departing over the last decade is projected to be 68 by the end of this year, a 24% increase over the 1990s and compared with only three in the 1960s.
Congress last year took up a bill that would have raised federal judges' salaries to $218,000 a year, but it died amid partisan bickering. A measure introduced this session would add 63 new federal judgeships but sidesteps the pay-raise issue.
Public-interest watchdogs are divided on the need for better compensation.
"We would like to have the really competent folk on the bench," said Bob Edgar, president of Common Cause, a nonprofit that lobbies for more open and accountable government. "Any federal judge who is competent doesn't need an exorbitant salary, but judges do need to be paid an adequate wage reflecting the responsibilities with which they are entrusted."
Grover Norquist, president of Americans for Tax Reform, argues that "nonfinancial compensation, like that you can't get fired," is ignored in the debate.
Federal judges' salaries may seem lavish to many taxpayers, but private judges with alternative dispute-resolution services can earn three times what a district judge makes and a successful partner at a top law firm can take home seven figures, said Arthur Hellman, a University of Pittsburgh law professor and federal judiciary expert.
He also sees a major change in the type of cases dominating a federal judge's docket, with intellectually stimulating cases squeezed out by more pressing prosecutions involving drugs, gangs and deportations.
"It's just not the attractive job it was 20 or 30 years ago, especially if you've been in private practice doing business- related cases," Hellman said.
There are two, soon to be three, vacancies on the U.S. 9th Circuit Court of Appeals based in San Francisco -- posts likely to be difficult to fill because of the more intense scrutiny of confirmation.
With the pressures against judicial service accumulating, "lawyers in large firms would have to think long and hard about taking an appointment, particularly if they are reaching the age where their children are going off to college," said Charles Gardner Geyh, associate dean of the University of Indiana law school.
It was the need to earn more for his children's education that prompted Larson to resign.
"If it was just my wife and I, it would be a whole different situation," Larson said in an interview.
Although the workload has become very heavy, it is also rewarding, he said, attributing his departure for the Los Angeles trial lawyers' firm of Girardi & Keese primarily to economics.
In his resignation announcement, he cited the unlikely prospects for a judicial pay raise in putting his family's interests "ahead of my own fervent desire to remain a federal judge."
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Trial lawyers lobby sinks $6.2M in debt
By S.A. Miller and Kara Rowland, The Washington Times
September 28, 2009
The trial lawyers lobby has been awash in debt and bleeding members - just as it embarks on a national campaign to block any clampdown on medical malpractice lawsuits as part of President Obama's health care overhaul.
The American Association for Justice, the most prominent group representing plaintiffs' attorneys, has seen a shake-up in its executive suite and has struggled to deal with what appears to be a mounting budget shortfall. To help it fight congressional efforts to make it harder for patients to sue doctors and lawyers, it recently sent out an extra solicitation to its members, asking them to fork over money for a lobbying campaign.
The most striking evidence of its financial woes is a swift decline in income, which resulted in a more than $6.2 million deficit in its operating budget for the fiscal year ending July 31, 2008, the most recent year for which data are available.
The biggest hit to its books was in membership dues, which dropped from $28.6 million in 2005 to $19.2 million in 2008, according to the annual AAJ financial report for that fiscal year filed with the Internal Revenue Service.
"That is our number-one priority: to strengthen our membership," said Joey Diaz, a member of the AAJ executive committee, speaking by phone from his law office in Madison, Miss. "We have a number of people working on membership and we have reversed that [downward] trend and are starting to move forward again."
Mr. Diaz said he did not know the status of the association's finances because he does not serve on the budget committee.
Officials at AAJ's Washington headquarters declined to answer any questions about finances or the status of the organization. The association's fiscal year ended July 31, and tax filings for that year are not available to the public.
Budget issues didn't stop the group from rolling out a nationwide advertising campaign this week, a response to Mr. Obama's decision to conduct state-run pilot programs that will test alternatives to lawsuits for settling medical malpractice claims.
Dubbed "Put Patients First," the ad blitz warns lawmakers against stripping patients of their rights to sue amid an "epidemic of preventable medical errors." The group is running commercials in Washington newspapers and has created a Web site, 98000reasons.org, which cites an Institute of Medicine study that estimates that 98,000 Americans die each year because of medical errors.
AAJ asked members for extra money to pay for the lobbying campaign in a solicitation last week.
"The stakes are high and the opposition is well organized, but we will succeed because we are on the right side of this issue," an AAJ executive told members in a fundraising e-mail. "A contribution to the Protecting Patients Rights Campaign is an investment in your practice and in your clients' future."
AAJ's Web site also asks members to donate money to an endowment, a political action committee and a fund to pay for AAJ's new Washington headquarters.
The association's financial filings for the past four years reveal that AAJ's operating revenue fell by more than $8 million - from $36.7 million in 2005 to $28.6 million in 2008 - while total yearly expenses remained about the same, at roughly $34 million.
The predicament appears to have forced the trial lawyers lobby to burn through its cash in 2008 and take on more than $14 million in additional debt.
When the association's chief executive officer, Jon Haber, stepped down early from the post in April, he explained that AAJ was in the strongest political position in a generation and that this gave him the opportunity to move on to new challenges.
"We are a far stronger organization today than when I joined AAJ four years ago, working in a positive environment with a pro-civil justice president and Congress," Mr. Haber said at the time.
He resigned after AAJ lost a lawsuit against Wachovia Bank over the collapse of a 2007 loan deal to finance the association's purchase of an office building as its new Washington headquarters.
The association lost more than $670,000 when Wachovia backed out of the loan deal, citing a clause in the agreement that allowed the bank to nix the deal if a "material adverse change" in market conditions hampered its ability to resell all or part of the loan.
AAJ argued in court documents that the bank gave assurances that it did not plan to enforce the clause. A district court dismissed most of AAJ's claims in June 2008.
AAJ was unable to collect the $120 million it sought in the lawsuit. In addition, the collapse of the Wachovia deal forced the group to get other financing to buy part-ownership in the 11-story building in the upscale Penn Quarter neighborhood of downtown Washington, and around the start of 2008 when it likely would have been more expensive than earlier.
After taking part ownership of the building, AAJ reported on its financial filing for the fiscal year ending in July 2008 investments of $23 million, up from $6.8 million the previous year. It listed net building assets of $8 million, compared with $2.7 million in 2007. But liabilities in 2008 topped $32 million, which included a $10 million "advance" and $4.1 million in long-term debt not reported in the three previous years.
In 2007, it had $14.9 million in assets and $15.1 million in liabilities.
The association reported, in its filing that ended in July 2008, an extra $15.2 million in revenue from the sale of its old headquarters.
The association's leaders viewed the move to new headquarters as part of a change in direction for the lobby, which also changed its name in 2006 from the Association of Trial Lawyers of America.
Victor Schwartz, a D.C. lawyer who serves as general counsel to the American Tort Reform Association, said trial lawyers are overstating the threat of malpractice reform in a bid for contributions.
"If they are losing members - or even if they are not - the potential threat of federal malpractice reform, even if remote, has provided AAJ a terrific means to solicit money," Mr. Schwartz said.
Judicial Pay Increase a Priority Despite Economy, Congressional Leaders Tell Judges
By Tony Mauro, The National Law Journal
Congressional leaders on Tuesday told the Judicial Conference that increasing judicial salaries is still a "serious and pressing issue" that deserves the attention of Congress even at a time of economic woe for the nation.
The sentiment among legislators at the conference was generally positive about the need for judicial pay increases, though several also said "we have to get our national economic house in order," said Anthony Scirica, chief judge of the 3rd U.S. Circuit Court of Appeals. The judiciary has been trying without success for years to win salary increases. A small cost-of-living increase was approved last year, and a salary hike made some headway in committee, but was not enacted.
Scirica, who chairs the executive committee of the Judicial Conference, briefed reporters on the pay and other issues after the closed-door meeting of the conference. The Judicial Conference, with representatives from all 13 courts of appeals and from district courts and the Court of International Trade, is the policymaking body of the federal judiciary.
Among those addressing the conference were Sen. Patrick Leahy, D-Vt., and Rep. John Conyers, D-Mich., chairs of the Senate and House Judiciary Committees respectively, as well as the ranking Republican members of both committees. Attorney General Eric Holder Jr. also spoke, Scirica said.
Both Leahy and Sen. Jeff Sessions, R-Ala., the ranking Republican on the Senate Judiciary Committee, told the judges they would "work hard" to speed the pace of confirming judicial nominees, Scirica said. Except for Supreme Court Justice Sonia Sotomayor, the current Congress has not held votes to confirm any federal judges.
Also Tuesday the conference took a step toward greater transparency by voting to put information about the workload of individual federal judges for free on the Internet, instead of making it available on the PACER system, which charges a fee. Under the Civil Justice Reform Act, judges have since 1990 been required to report on their caseloads and backlogs twice a year. "It's a way for judges to have a standard and a marker," said Scirica, adding that the reporting gives "gentle encouragement" to judges to stay on track in resolving cases. The workload reports will start going online next year.
The judges' group also approved additional measures to contain costs for the courts, including "court sharing" for magistrate judges that will reduce the amount of space needed in new courthouse construction.
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Coming Soon: Supreme Court Postage Stamps
The Legal Times
September 15, 2009
Soon you'll be able to send mail with the image of a favorite Supreme Court justice affixed to the upper right corner. The U.S. Postal Service on Sept. 22 is dedicating four 44-cent stamps honoring justices Joseph Story, Louis Brandeis, Felix Frankfurter, and William Brennan Jr. (Images below.) The dedication ceremony will be at the Supreme Court, with Chief Justice John Roberts Jr. joining Postmaster John Potter and D.C. postmaster Yverne Moore for the formalities.
Also in attendance will be Thurgood Marshall Jr., son of the justice, who is a member of the board of governors of the postal service and a partner at Bingham McCutchen. Justice Marshall was honored with a stamp in 2003, back when 37 cents would send a piece of mail on its way.
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Ex-Justice O'Connor: Electing judges puts courts at risk
By Jennifer Sullivan. Seattle Times
September 15, 2009
Former U.S. Supreme Court Justice Sandra Day O'Connor believes Washington and other states need to completely overhaul the way that state and local judges are selected for the bench.
O'Connor, the first woman to serve on the nation's highest court, told a Seattle audience Monday that because lower-level judges are elected they are not immune from potentially being swayed by campaign contributors. In Washington, as in about two dozen other states, judicial positions from state Supreme Court justice to municipal judge are elected positions.
"How we choose our state judges and how we decide whether to keep them in office or not is of critical importance," O'Connor said during a Seattle University School of Law conference. "We are now facing greater threats to judicial independence than we did in the past."
O'Connor said the threat to judicial independence is from corporations, attorneys and other interest groups that donate to campaigns with the hope of obtaining favorable rulings from the judge after the election.
"The result has been an arms race in funding, making it so a campaign for state judge is often as expensive, or more so, than a campaign for a U.S. Senate seat," O'Connor said.
The conference started with a nearly two-hour discussion centered on the U.S. Supreme Court's June decision in Caperton v. Massey Coal, which held that elected judges must step aside when large campaign contributions by interested parties create appearance of bias.
A number of panels and commissions have recommended that Washington do away with judicial elections in favor of a merit-based appointment system, said Mary Wechsler, chair of the Washington chapter of the American Judicature Society.
O'Connor cited multimillion-dollar judicial races in two states, Alabama and Illinois, in her argument against judicial elections. She said the first judicial race that cost more than $1 million took place 30 years ago in Texas.
The Caperton case and other cases involving questionable judicial campaign contributions "cast our whole judiciary in a negative light," O'Connor said.
She noted that the founders of the country believed it crucially important that federal judges have the freedom to make unpopular decisions without worrying about poll numbers. It was only after President Jackson's election in 1828 that he persuaded states to begin adopting elections for judges, she said.
While O'Connor said the majority of Americans believe that judges are influenced by campaign contributions, Wechsler told the audience that a poll by her group found that 82 percent of people surveyed found judges in Washington state to be "honest and trustworthy."
O'Connor believes the solution lies in an independent commission recommending a list of judicial candidates to a state governor, who will make the final decision.
O'Connor, a former state judge, assistant attorney general and member of the Arizona Legislature, was appointed to the Supreme Court by President Reagan in 1981. She retired in 2006 and has since been championing judicial independence and changes in what grade-school students are taught across the nation.
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A Legal Battle: Online Attitude vs. Rules of the Bar
By JOHN SCHWARTZ, The New York Times
September 13, 2009
Sean Conway was steamed at a Fort Lauderdale judge, so he did what millions of angry people do these days: he blogged about her, saying she was an “Evil, Unfair Witch.”
But Mr. Conway is a lawyer. And unlike millions of other online hotheads, he found himself hauled up before the Florida bar, which in April issued a reprimand and a fine for his intemperate blog post.
Mr. Conway is hardly the only lawyer to have taken to online social media like Facebook, Twitter and blogs, but as officers of the court they face special risks. Their freedom to gripe is limited by codes of conduct.
“When you become an officer of the court, you lose the full ability to criticize the court,” said Michael Downey, who teaches legal ethics at the Washington University law school.
And with thousands of blogs and so many lawyers online, legal ethics experts say that collisions between the freewheeling ways of the Internet and the tight boundaries of legal discourse are inevitable — whether they result in damaged careers or simply raise eyebrows.
Stephen Gillers, an expert on legal ethics at New York University Law School, sees many more missteps in the future, as young people who grew up with Facebook and other social media enter a profession governed by centuries of legal tradition.
“Twenty-somethings have a much-reduced sense of personal privacy,” Professor Gillers said. Younger lawyers are, predictably, more comfortable with the media than their older colleagues, according to a recent survey for LexisNexis, the legal database company: 86 percent of lawyers ages 25 to 35 are members of social networks like Facebook, LinkedIn and MySpace, as opposed to 66 percent of those over 46. For those just out of law school, “this stuff is like air to them,” said Michael Mintz, who manages an online community for lawyers, Martindale-Hubbell Connected.
In Mr. Conway’s case, the post that got him in trouble questioned the motives and competence of Judge Cheryl Aleman, and appeared on a rowdy blog created by a criminal defense lawyers’ group in Broward County. The judge regularly gave defense lawyers just one week to prepare for trials, when most judges give a month or more. To Mr. Conway, the move was intended to pressure the lawyers to ask for a delay in the trials, thus waiving their right under Florida law to have a felony trial heard within 175 days, pushing those cases to the back of the line.
“All I had left were my words,” Mr. Conway said, adding that he decided to use the strongest ones he had.
Mr. Conway initially consented to a reprimand from the bar last year, but the State Supreme Court, which reviews such cases, demanded briefs on First Amendment issues. The American Civil Liberties Union of Florida argued that Mr. Conway’s statements were protected speech that raised issues of legitimate public concern. Ultimately the court affirmed the disciplinary agreement and Mr. Conway paid $1,200.
That penalty is light compared with the price paid by Kristine A. Peshek, a lawyer in Illinois who lost her job as an assistant public defender after 19 years of service over blog postings and who now faces disciplinary hearings as well.
According to the complaint by officials of the state’s legal disciplinary body, Ms. Peshek wrote posts to her blog in 2007 and 2008 that referred to one jurist as “Judge Clueless” and thinly veiled the identities of clients and confidential details of a case, including statements like, “This stupid kid is taking the rap for his drug-dealing dirtbag of an older brother because ‘he’s no snitch.’ ”
Another client testified that she was drug free and received a light sentence with just five days’ jail time, and then complained to Ms. Peshek that she was using methadone and could not go five days without it. Ms. Peshek wrote that her reaction was, “Huh? You want to go back and tell the judge that you lied to him, you lied to the presentence investigator, you lied to me?”
The complaint, first noted by the Legal Profession Blog, said that not only did Ms. Peshek seem to reveal confidential information about a case, but that her actions might also constitute “assisting a criminal or fraudulent act.”
Ms. Peshek declined to comment, citing the pending inquiry “for which I am currently seeking representation.”
Frank R. Wilson, a lawyer in San Diego, caused a criminal conviction to be set aside and sent back to a lower court because of his blog postings as a juror. According to a decision published recently in the California Law Journal and picked up by the Legal Profession Blog, Mr. Wilson, while serving on a jury in 2006, posted details of the case on his blog. Any juror who blogs about the details of a trial risks trouble and even civil contempt charges. But lawyers like Mr. Wilson also face professional penalties that can threaten their livelihood.
Mr. Wilson received a 45-day suspension, paid $14,000 in legal fees and lost his job. He said that warnings not to discuss the case did not ban blogging; the bar disagreed. Mr. Wilson also had not disclosed during jury selection that he was a lawyer. In an interview, Mr. Wilson said he had not been working as a lawyer at the time and had only been asked his occupation.
Judges, too, can get into trouble online. Chief Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, in California, was investigated for off-color humor that was accessible on his family’s Web server, though not intended to be public. He was cleared of wrongdoing, but a three-judge panel admonished him for not safeguarding the site, which they said was “judicially imprudent.”
Of course, some lawyers’ online problems are the same as everyone else’s, like getting caught in a fib. Judge Susan Criss of the Texas District Court in Galveston recalled in an interview a young lawyer who requested a trial delay because of a death in the family. The judge granted the delay, but checked the lawyer’s Facebook page.
“There was a funeral, but there wasn’t a lot of grief expressed online,” Judge Criss said. “All week long, as the week is going by, I can see that this lawyer is posting about partying. One night drinking wine, another night drinking mojitos, another day motorbiking.” At the end of the delay, the lawyer sought a second one; this time the judge declined, and disclosed her online research to a senior partner of the lawyer’s firm.
Judge Criss, who first told the story at a panel during an American Bar Association conference, said that the lawyer has since removed her from her friends list.
For his part, Mr. Conway noted that the judge he criticized was reprimanded last year by the Florida Supreme Court, which affirmed a state panel’s criticism of what it called an “arrogant, discourteous and impatient” manner with lawyers in another case. (Judge Aleman did not return calls seeking comment.) Mr. Conway said his practice was “probably enhanced by the experience” of going public.
But the State Supreme Court ultimately accepted Mr. Conway's earlier reprimand agreement with the bar, which had argued in its brief to the court that the online “personal attack” was “not uttered in an effort to expose a valid problem” with the judicial system, and so the statements “fail as protected free speech under the First Amendment.”
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Calif. courts shuttered Wednesday to save money
The Associated Press
SAN FRANCISCO - The doors are closed at the California Supreme Court, the tiny courthouse in Alpine County and every state courthouse in between in an unprecedented attempt to close a historic budget deficit.
The Judicial Council, which oversees California's courts, plan to shutter the courts on the third Wednesday of every month from September through July. The move is expected to save the state $84 million.
The closures will cost 20,000 court employees a day's pay each month.
The state's 1,700 judges are protected by state law from having their paychecks altered and are exempt from the cuts. Chief Justice Ron George says all seven high court justices have voluntarily given up a day's pay and that a large number of other judges have followed suit.
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Mobile attorney takes helm of state Judicial Inquiry Commission
By Brian Lyman, Mobile Press-Register
September 07, 2009
Attorney Norman Waldrop has been appointed chairman of the state Judiciary Inquiry Commission, which investigates judicial misconduct complaints.
For only the second time in its nearly 40-year history, Alabama's Judicial Inquiry Commission -- sworn with the task of keeping state judges in line -- has chosen an attorney as its chairman, instead of a jurist.
That new chairman is Mobile attorney Norman Waldrop, whose legal career in civil litigation has lasted nearly as long as the commission he now heads. He did his undergraduate work at Auburn and went to law school at the University of Alabama.
Waldrop, 63, specializes in defending medical malpractice cases.
The commission, known as JIC, is made up of nine members, including four jurists -- two circuit judges, one district judge and a member of one of the state's appellate courts -- three lay people and two attorneys.
The lay persons and district judge are chosen by the governor. The circuit judges are chosen by the Alabama Circuit Judges' Association and the appellate member is selected by Alabama's three appellate branches. Attorneys on the commission are selected by the Alabama State Bar.
Terms last four years and are unpaid.
Fellow commissioners voted Waldrop into the leadership position in August. He succeeded longtime chairman Judge Randall Cole of Fort Payne.
Waldrop has served on the commission for 10 years.
He was onboard when the commission became involved in pursuing ethics charges against Circuit Judge Herman Thomas of Mobile and Circuit Judge Stuart DuBose of Clarke County.
Perhaps the most prominent case brought by the Judicial Inquiry Commission against a judge in recent years was that of one-time Alabama Supreme Court Chief Justice Roy Moore.
The Court of the Judiciary, which heard the case, ousted Moore in 2003 over his refusal to remove a granite monument, carved with the Ten Commandments, from the Alabama Judicial Building in Montgomery.
Later, Moore supporters and some members of the Alabama Legislature responded to his ouster by trying, without success, to abolish the Judicial Inquiry Commission.
Moore is a candidate for the 2010 Alabama governor's race.
The commission meets, on average, once a month in Montgomery to consider complaints filed against judges throughout the state.
Waldrop said hundreds of complaints are filed annually -- and each one is considered -- but no more than one or two judges a year end up facing "formal complaints" brought by Judicial Inquiry Commission and taken before the Court of the Judiciary.
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Cases Pile Up in Georgia Courts - Budget Squeeze Forces Cuts in Spending for Judiciary, Creating Months-Long Delays
By PAULO PRADA and COREY DADE, The Wall Street Journal
September 8, 2009
ATLANTA -- The wheels of justice in Georgia are grinding more slowly each day.
Cuts in spending for the state court system have led to fewer court dates available for hearings and trials, creating a growing backlog of cases. With serious criminal matters being heard first, delays are stretching to months for many civil, domestic and minor criminal cases.
The state court system, which handles more than 150,000 cases a year, had to slash spending by almost 15% in the past fiscal year, and more cuts loom. The state's budget shortfall widened to $3.7 billion over the past 18 months.
Georgia judges are worried the system could stall. "We take an oath to uphold the laws and for people to have access to a judiciary," state Supreme Court Chief Justice Carol W. Hunstein said in an interview. The cutbacks, she said, "are doing real harm to the system." She said one state judge complained to her recently that it currently takes 60 days to hold a temporary hearing for a case such as family custody, which once took a few weeks at most.
Shortfalls in public finances are squeezing judiciaries nationwide. According to a July survey by the Washington-based National Center for State Courts, at least 28 state court systems have imposed hiring freezes, 13 have frozen salaries and seven have planned or imposed salary reductions. Six states have furloughed court staff and six have reduced court hours, according to the center, which tracks state court data and issues.
But Georgia's situation appears particularly severe. Because schedules and staffing have been reduced so aggressively, judges and attorneys say, the caseload appears to be backing up more quickly than in other states. The state Supreme Court plans to gather judges from across the state in October to determine the severity of the problem, which varies in part based on additional local cutbacks in some counties.
Statewide, the crunch is affecting even the highest courts. Though state law forbids the executive branch from cutting judges' salaries, the seven justices of the state Supreme Court last week volunteered to forgo three days of pay. The decision, the justices said, was a show of unity with other state-funded employees who have been ordered by Gov. Sonny Perdue to accept a three-day furlough by the end of the year.
The state's available funds for the fiscal year ended June 30 totaled $18.6 billion, short of the $21.4 billion forecast. As a last-ditch effort to cut costs, Mr. Perdue, a Republican, ordered all agencies in June to slash spending by 25% during that month. Now, three months into the state's new fiscal year, state agencies are struggling to determine how to shave 5% from the 2010 budget, which had already been trimmed from the previous year.
Those who depend on a smooth and efficient court system are furious. "The last thing a society needs is to have the courthouse doors close down," said Bryan Cavan, president of the State Bar of Georgia. "Disputes must get resolved, and criminal cases need to get heard."
The scarcity of state funds and the increased workload have also led to criticism of the state's public defenders by advocacy groups who claim the system doesn't have enough resources to get proper counsel for poor defendants.
In April, a group of attorneys with the Atlanta-based Southern Center for Human Rights filed suit against the public-defender system, law-enforcement officials and state revenue officials. The suit, filed in the Superior Court of Elbert County on behalf of five plaintiffs and "all those similarly situated," alleges that many poor defendants are "left to languish in jail" and that "some have been without counsel for over six months."
Mack Crawford, executive director of the Georgia Public Defender Standards Council and one of the officials named in the suit, declined to discuss the case, but rejected criticism that public defenders can't cope with the cutbacks. Still, he said, the backlogs "slow our office down, and the courts and the prosecution, too."
Despite the uproar among judges, Mr. Perdue has said the state must meet its constitutional obligation to a balanced budget and that the judiciary must accept its share of the burden. "Is the judiciary more important than education? More important than health care?" asked Bert Brantley, Mr. Perdue's spokesman. "Every piece of government believes its spending is the most important, but clearly when you're governor you have to look at the state's overall responsibilities."
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ABA Slams Bankruptcy Code Provision
Rachel Feintzeig, The Wall Street Journal
September 3, 2009
The country’s most prominent legal organization is taking a stand against the Bankruptcy Code.
The 40,000-member American Bar Association Tuesday filed an amicus brief with the Supreme Court challenging the constitutionality of a change made to the Bankruptcy Code as part of its 2005 overhaul. The provision in question bars attorneys from encouraging clients who are considering filing for bankruptcy protection to take on more debt.
Minnesota law firm Milavetz, Gallop & Milavetz P.C. believes the rule violates its attorneys’ right to free speech. In 2007, Milavetz, alongside two prospective clients and two of its lawyers, launched a lawsuit against the U.S. that has found its way all the way up to the nation’s highest court.
Before the nine justices, including new Supreme Court Justice Sonia Sotomayor, take up the case as part of their upcoming fall term, the ABA decided to weigh in with some words of caution.
“The ABA requests that, in determining whether the BAPCPA [Bankruptcy Abuse Protection Consumer Protection Act] withstands constitutional scrutiny, the Court consider the substantial negative – and unnecessary – impact of the BAPCPA on state regulation of the legal profession and on the important protections embodied in the attorney-client privilege,” the ABA said in the amicus brief.
The association warned that classifying attorneys as “debt relief agencies” – the group subject to increased regulation under the Bankruptcy Code – would undermine long-standing rules protecting attorney-client privilege and leaving regulation of the legal profession to individual states.
“The BAPCPA is an express attempt to regulate attorneys in ways that are in direct conflict with existing state laws and ethical rules, and with the attorney’s role of advisor and advocate,” the ABA said.
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A Doctor's Plan for Legal Industry Reform – [Op-Ed]]
By Dr. RICHARD B. RAFAL, The Wall Street Journal
September 3, 2009
Since we are moving toward socialism with ObamaCare, the time has come to do the same with other professions—especially lawyers. Physician committees can decide whether lawyers are necessary in any given situation.
At a town-hall meeting in Portsmouth, N.H., last month, our uninformed lawyer in chief suggested that we physicians would rather chop off a foot than manage diabetes since we would make more money doing surgery. Then President Obama compounded his attack by claiming a doctor's reimbursement is between "$30,000" and "$50,000" for such amputations! (Actually, such surgery costs only about $1,500.)
Physicians have never been so insulted. Because of these affronts, I will gladly volunteer for the important duty of controlling and regulating lawyers. Since most of what lawyers do is repetitive boilerplate or pushing paper, physicians would have no problem dictating what is appropriate for attorneys. We physicians know much more about legal practice than lawyers do about medicine.
Following are highlights of a proposed bill authorizing the dismantling of the current framework of law practice and instituting socialized legal care:
• Contingency fees will be discouraged, and eventually outlawed, over a five-year period. This will put legal rewards back into the pockets of the deserving—the public and the aggrieved parties. Slick lawyers taking their "cut" smacks of a bookie operation. Attorneys will be permitted to keep up to 3% in contingency cases, the remainder going into a pool for poor people.
• Legal "DRGs." Each potential legal situation will be assigned a relative value, and charges limited to this amount. Program participation and acceptance of this amount is mandatory, regardless of the number of hours spent on the matter. Government schedules of flat fees for each service, analogous to medicine's Diagnosis Related Groups (DRGs), will be issued. For example, any divorce will have a set fee of, say, $1,000, regardless of its simplicity or complexity. This will eliminate shady hourly billing. Niggling fees such as $2 per page photocopied or faxed would disappear. Who else nickels-and-dimes you while at the same time charging hundreds of dollars per hour? I'm surprised lawyers don't tack shipping and handling onto their bills.
• Legal "death panels." Over 75? You will not be entitled to legal care for any matter. Why waste money on those who are only going to die soon? We can decrease utilization, save money and unclog the courts simultaneously. Grandma, you're on your own.
• Ration legal care. One may need to wait months to consult an attorney. Despite a perceived legal need, physician review panels or government bureaucrats may deem advice unnecessary. Possibly one may not get representation before court dates or deadlines. But that's tough: What do you want for "free"?
• Physician controlled legal review. This is potentially the most exciting reform, with doctors leading committees for determining the necessity of all legal procedures and the fairness of attorney fees. What a wonderful way for doctors to get even with the sharks attempting to eviscerate the practice of medicine.
• Discourage/eliminate specialization. Legal specialists with extra training and experience charge more money, contributing to increased costs of legal care, making it unaffordable for many. This reform will guarantee a selection of mediocre, unmotivated attorneys but should help slow rising legal costs. Big shot under indictment? Classified National Archives documents down your pants? Sitting president defending against impeachment? Have FBI agents found $90,000 in your freezer? Too bad. Under reform you too may have to go to the government legal shop for advice.
• Electronic legal records. We should enter the digital age and computerize and centralize legal records nationwide. All files must be in a standard, preferably inconvenient, format and must be available to government agencies. A single database of judgments, court records, client files, etc. will decrease legal expenses. Anyone with Internet access will be able to search the database, eliminating unjustifiable fees charged by law firms for supposedly proprietary information, while fostering transparency. It will enable consumers to dump their clunker attorneys and transfer records easily.
• Ban legal advertisements. Catchy phone numbers such as 1-800-LAWYERS would be seized by the government and repurposed for reporting unscrupulous attorneys.
• Collect data about the supply of and demand for attorneys. Create a commission to study the diversity and geographic distribution of attorneys, with power to stipulate and enforce corrective actions to right imbalances. The more bureaucracy the better. One can never have too many eyes watching these sleazy sneaks.
• Lawyer Reduction Act (H.R. -3200). A self-explanatory bill that not only decreases the number of law students, but also arbitrarily removes 3,200 attorneys from practice each year. Textbook addition by subtraction.
Enthusiastically embracing the above legal changes can serve as a "teachable moment" and will go a long way toward giving the lawyers who run Congress a taste of their own medicine.
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Americans Like the U.S. Supreme Court, They Really Do
Vivia Chen, American Lawyer Magazine
Considering the partisanship and mudslinging involved in approving a nominee to the U.S. Supreme Court, many readers might find it surprising that most Americans think the high court is doing a fine job, and that the Court is neither too liberal nor too conservative.
According to a just released Gallup poll, 61 percent of Americans approve of the way the Court handles its job -- "among the most positive ratings the court has received in the past decade," according to Gallup (the disapproval rate is 28 percent). As for political ideology, 50 percent of Americans describe the Court as "about right" (last year, 43 percent thought it was "about right").
What's the reason for all the love? Gallup says Americans feel "more positive about government in general." The polling organization adds that approval ratings for all three branches of government are "substantially higher today than they were a year ago, when President George W. Bush was still in office."
Call to Jury Duty Strikes Fear of Financial Ruin
By JOHN SCHWARTZ, The New York Times
September 1, 2009
FORT LAUDERDALE, Fla. — One by one, jurors answered Judge Robert A. Rosenberg when he asked whether serving a trial of four to five weeks would be a hardship. Chemelle Charles, a nurse, said it definitely would: “I’m the only one working in my house right now.”
Ms. Charles’s husband, a lumberyard employee, was laid off in July, she said. On that recent morning, Judge Rosenberg dismissed Ms. Charles, along with more than half of the 80 potential jurors he interviewed, many of them for similar reasons.
Few people like jury duty. But for many people squeezed by the recession, a jury summons holds a new fear: financial ruin.
Judges and court officials around the country say they are seeing the impact of the recession in their courtrooms. While no one keeps overall statistics on juror excuses, those closest to the process say that in many parts of the country an increasing number of jurors are trying to get out of service, forcing courts to call an ever larger pool of jurors to meet their needs.
Ranae Johnson, the jury commissioner for Bonneville County, Idaho, said that she typically summoned 400 people for each two-week term of service, but that lately she “had to pop it up to 500” because of rising numbers of economic hardship claims. “We’re hearing it more than we used to,” Ms. Johnson said. “A lot more.”
She read from her notes of recent calls. “I was laid off, have no car, no job and no friends that can even bring me there,” one caller had argued. Another said, “I cannot even afford the gas to have to come down there.”
Jane Hybarger, the jury administrator for the United States District Court in Las Vegas, said the pleas she was hearing were more urgent, even desperate.
“Now I’m hearing people who are living day to day, who are months behind in their mortgage,” Ms. Hybarger said. “There’s tears in their voice — they don’t know how they’re going to put food on the table.”
Judge Rosenberg, in Florida, said in an interview that when the “pervasive cloud of financial insecurity” reaches the jury room, “a judge has to be sensitive to the economic times.” He had also dismissed Michael Lazar, a self-employed “steel detailer,” or designer of steel structures. Mr. Lazar said “it would kill me” to miss opportunities to work; he might lose his home.
Alan Abeles, who owns a company that makes promotional items like T-shirts, also told Judge Rosenberg he could not serve — “no, sir, not in this economy.” The judge pressed Mr. Abeles about whether any of his employees could fill in. “I fired everybody,” he replied; just three employees remained, and none were capable of taking on his duties. He, too, was released.
Other judges say they sense a shift as well. Judge Barbara M. G. Lynn of the Federal District Court in Dallas said that as she geared up recently for a trial that was to last several months, the pleas from jurors differed from those in a case of similar length she impaneled a few years ago.
“I did have more people who had lost their jobs,” Judge Lynn said, “or were looking for a new job, or were relocating for a job.” Many potential jurors told her that their employers would not pay for their jury time — employers that she knew, from the previous long trial, had paid in the past.
Unemployment — or the fear of it — is hardly a barrier to jury service, of course, and being without a job could even make it easier for some people to do their civic duty. Jury experts say that many people have an exaggerated sense of the hardship that service requires.
“Most people, when they’re called for jury duty, assume if they are going to be on a trial, it’s going to be a long trial,” said Shari Seidman Diamond, a law professor at Northwestern University. In fact, Professor Diamond said, the typical trial takes just two or three days, and in many jurisdictions jurors are dismissed after one day if they are not placed on a jury.
Longer cases prompt greater efforts to head for the exits, said Douglas L. Keene, a trial consultant in Austin, Tex. Those who are unemployed “can’t afford to not be out there looking for a job,” Mr. Keene said. And despite laws that protect jurors from being fired for their service, he said, people whose companies have gone through rounds of layoffs worry about the impact on them of several days away from the office.
Fretful or angry jurors are a concern for plaintiffs’ lawyers in civil suits, Mr. Keene said, because the plaintiffs brought the suit and “are more likely to be blamed by the jurors for any inconvenience that jury duty caused them.”
Judge Rosenberg agreed. He could force more jurors into the box than he does, he said, but a miserable juror who is straining to get back to work might be too eager to reach a quick verdict instead of engaging in a full and careful deliberation. “That’s not the juror you want,” he said. “That’s not justice.”
There are actions that states could take to make jury service less painful financially, said Patricia Lee Refo, a lawyer in Phoenix, principally paying jurors more. Jury service, Ms. Refo said, is “a critically important civic service,” and “we should pay them in accordance with the importance of their work.”
That is not a likely path for financially squeezed states to take, and some areas are openly hoping that people without incomes will find jury pay attractive. Matt Benefiel, a court official in Orange County, Fla., which includes Orlando, said that while the area’s unemployment rate was higher than the national average, the number of people claiming hardship to get out of service had not increased.
“We might actually have jurors who are looking to get the money,” Mr. Benefiel said, which amounts to $15 a day for the first three days and $30 thereafter.
Norman Goodman, the county clerk for Manhattan, agreed.
“If somebody’s out of work, I guess jury service is a paying job,” Mr. Goodman said, even if the daily check from the court is just $40. “It’s not going to get you into Tiffany’s,” he said, “but it’s something.”
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Federal Government Needs Massive Hiring Binge, Study Finds
By Steve Vogel, Washington Post Staff Writer
September 3, 2009
The federal government needs to hire more than 270,000 workers for "mission-critical" jobs over the next three years, a surge prompted in part by the large number of baby-boomer federal workers reaching retirement age, according to the results of a government-wide survey being released Thursday.
The numbers also reflect the Obama administration's intent to take on several enormous challenges, including the repair of the financial sector, fighting two wars, and addressing climate change.
"It has to win the war for talent in order to win the multiple wars it's fighting for the American people," said Max Stier, president and chief executive of the Partnership for Public Service, the think tank that conducted the survey of 35 federal agencies, representing nearly 99 percent of the federal workforce.
Despite its comprehensive scope, the survey is necessarily imprecise about certain questions in looking so far into the future. The number of hires would be affected, for example, by federal workers deciding to delay their retirement, the government continuing to rely on private contractors to handle some of these jobs, and Congress balking at the price tag of adding new workers to the federal payroll.
Nevertheless, the survey makes clear that the majority of new hires will be needed in five broad fields -- medical, security, law enforcement, legal and administrative.
Mission-critical jobs are those positions identified by the agencies as being essential for carrying out their services. The study estimates that the federal government will need to hire nearly 600,000 people for all positions over President Obama's four years -- increasing the current workforce by nearly one-third.
The medical and public health area is most in need of hires, according to the study. Stier described the Department of Veterans Affairs as a "dramatic example" of an agency with pressing needs, as a result of the ongoing wars in Iraq and Afghanistan. VA, according to the report, will need more than 48,000 hires over the next three years, including 19,000 nurses and 8,500 physicians.
Intelligence agencies expect to hire 5,500 people in the next year and "in the same order of magnitude" over the following two years, according to Ronald P. Sanders, chief human capital officer for the Office of the Director of National Intelligence. Such agencies include the Central Intelligence Agency and the National Security Agency.
"It's a combination of how much turnover we expect and how much growth we expect in our budget," Sanders said.
The nation's unsettled economy and high unemployment rate may ease the government's task, as workers turn to the federal sector for job security and good benefits. But Stier said many federal agencies will have to fight to attract top talent, particularly in fields in which government cannot compete with private-sector salaries.
"Most are going to see extreme competition with the private sector," Stier said. This could be especially true in fields such as medical, legal and information technology, he said.
Yet federal hiring remains a cumbersome process for many agencies. "Fixing the hiring process is a key component in making it work," Stier said.
"Most government agencies have been historically passive, announcing jobs and waiting for people to line up," said Sanders, who served as associate director for policy for the Office of Personnel and Management before joining the national intelligence office.
But Sanders said Obama's vow to make government service "cool" and federal efforts to streamline the hiring process should leave the government in good stead to make the hires.
The Department of Homeland Security expects to hire for 65,730 positions by 2012, an increase of more than 48,000 from the previous three-year period.
The Justice Department is expecting 4,000 new positions among law enforcement personnel, correctional officers and attorneys in the 2010 budget, said Mari Barr Santangelo, chief human capital officer for the department.
But, federal officials said, the ultimate accuracy of the hiring projections will depend on whether current employees retire as predicted.
Despite the projected growth in federal jobs, the size of the government would be no larger than at most other times in the country's post-World War II history, both in relative and absolute terms.
In 1970, for example, the number of civilians on the federal payroll numbered 2,095,100, a figure that represented a little more than 1 percent of the U.S. population. In 2008, the comparable figure was 2,020,200, or 0.66 percent.
However, the figures do not reflect the enormous growth of the government contractor force as the result of privatization efforts pursued by previous administrations.
The Obama administration has signaled in its budget its intention to replace many contractors with government workers, particularly in the field of defense acquisition. This is another reason for the predicted surge in government hiring.
OPM Director John Berry was unavailable to comment on the report, according to a spokesperson.
The survey results are to be posted Thursday at http://www.wherethejobsare.org, according to the partnership.