Tort Trial Statistics in Federal Court

The Justice Department collects statistics on tort trials in the federal courts . The statisitics for the 2002-2003 period are as follows.

Tort trial cases terminated in U.S. district courts, 2002 - 2003

Total number tort cases concluded:	98,786
Jury and bench tort trials	1,647
Tort trials with plaintiff winners	704
Tort trials with monetary awards	590
Median damage awards	$201,000

Therefore about 1.6% of the federal tort cases went to trial. Plaintiffs won about 42% of the tort trials and the defense won about 58%% of the tort trials.

In those 704 tort trials where a monetary awards were made, the median damage award was $201,000. This means half of the verdicts were for more than $201,000 and half of the verdicts were for less than $201,000.

NSA Eavesdropping -- Legal Analysis Roundup

By now, everyone has heard of President Bush's warrantless eavesdropping program. Court Watch has put together a short list of some influential analyses:

Analyst	Analysis
Cole, David	illegal
Fein, Bruce	illegal
Fisher, Louis	illegal
Gonzales, Alberto	legal
Kerr, Orin	illegal
Maggs, Greg	legal
Schmidt, John	legal

EDITED 12/22/05: Fixed Bruce Fein analysis link.

"Tentative Rulings" and "Inclinations" of the Court

Previously, Court Watch referenced the local rules of the Marin County Superior Court and endorsed the efficient practice of issuing tentative rulings a day or more before oral argument on pretrial motions. Such use of tentative rulings is widespread in California and, on balance, is very helpful and effective in focusing the subsequent oral argument.

One federal district court judge in Hawai`i already employs a variation of tentative rulings in her Court. Judge Susan Mollway has, for some time, published her inclinations on the Internet (at the District Court web site's judge section) the day before the hearing.

The inclinations are prefaced with an explanation:

It is Judge Mollway's practice, whenever possible, to notify attorneys and pro se parties scheduled to argue motions before her of her inclinations on the motions and the reasons for the inclinations. This is part of Judge Mollway's normal practice, rather than a procedure unique to a particular case, and is designed to help the advocates prepare for oral argument.

It is the judge's hope that the advance notice of her inclination and the accompanying reasons will focus the oral argument and permit the advocates to use the hearing to show the judge why she is mistaken or why she is correct. The judge is not bound by the inclination and sometimes departs from the inclination in light of oral argument.

Judge Mollway attempts to communicate her inclinations no later than one working day before a hearing. If your case is not mentioned on the webpage when you check it, please check again later to see whether the webpage has been updated to include the inclination in your case.

The inclination is intended to be only a summary of the court's thinking before the hearing and not a complete legal discussion. The court will issue a written order with a detailed analysis after the hearing.

The parties are reminded that, under Local Rule 7.4, they may not submit supplemental briefs (such as briefs addressing the inclination) unless authorized by the court. The parties are also reminded that they must comply with Local Rule 7.8.

A tentative ruling allows the attorneys to address what the judge believes are the important issues. It forces them to face reality. It also helps the clients, who are paying the bills, decide whether it's worth paying an attorney to appear in court and try to change the judge's mind.

Remember, tentative rulings need to be reasoned decisions. The judge doesn't just tentatively grant or deny a motion before a hearing; the judge also explains the basis for the tentative ruling. The judge has to read the memoranda, understand the memoranda, and then make a tentative decision. The lazy judge won't like doing it. The permanently confused judge won't like doing it. Better for these judges to "work in mysterious ways" that hide their shortcomings.

Most judges fall in neither category, but they may react against a tentative ruling system because it is not a "traditional" system in Hawaii. Moreover, some of the memoranda are very badly written. Even a good judge may prefer not to analyze a garbled memorandum.

Fortunately, they don't have to. If a memorandum is truly hard to follow, the tentative ruling can find it unpersuasive for that reason and rule accordingly. The advocate then has a chance to clarify his or her position at oral argument--and knows that it's necessary.

The Circuit Court judges should seriously discuss the use of tentative rulings amongst themselves or simply start pilot programs in their own respective courtrooms. Among other things, it would shorten their motion calendars.

The "Watch List" and the "No Fly List"

Anyone who travels by airplane needs to be aware of two lists: the "Watch List" and the "No Fly List." Those on the "No Fly List" will become aware of it very soon. They will be left at the gate as their flight takes off. Those on the "Watch List" will have lesser--but recurring--problems boarding flights. Only when the extra effort needed simply to board an airplane is recognized as a recurring problem does it dawn on the traveler that perhaps he or she has been misidentified as a person that needs extra "watching." The most frustrating tip-off may be rejection by the unmanned kiosks that would otherwise provide a boarding pass and allow you to skip waiting in line for a live person. Are many people misidentified? Yes. By the government's own admission, the numbers are impressive:

About 30,000 airline passengers have discovered since last November that their names were mistakenly matched with those appearing on federal watch lists, a transportation security official said Tuesday.

Investigation by Airportbusiness An airport trade magazine called “Airport Business,’ interviewed a staff counsel at the Electronic Privacy Information Center, who said this appeared to be the first time such a large error has been admitted. "It was a novel figure to me," the attorney, Marcia Hofmann, said. "The figure shows that many more passengers than we've anticipated have encountered difficulty at airports. The watch list still has a long way to go before it does what it's supposed to do." These type of "Watch Lists" need need to be closely controlled if recent history is reflective of what happens. So-called “Watch Lists” can get out of hand, as reported by CNN over three years ago when it reported that FBI officials said they have "lost control" of an agency-created watch list of people wanted for questioning after the September 11 terrorist attacks and the list has "taken on a life of its own" after showing up on several Web sites. The CNN report goes on to report many of the people on the FBI list have been cleared of any possible connection to the 9/11 attacks.

The FBI said the list was not a list of suspects, but people whom agents wanted to talk to.

Various configurations of the FBI list have been put on the Internet the FBI and conceedes some private companies use the FBI list for background checks. Since the new airport list has 30,000 errors in it, hopefully it will not also gain a "life of its own." Does any of this mean that if a weary trial attorney gets the deluxe body and bag check at the airport, then the attorney is "on the list?" Not always. The admission was followed by this explanation:

[A]dditional screening can occur for multiple reasons [other than being on the list of names], including fitting a certain profile, flying on a one-way ticket or being selected randomly by a computer.

However, where there is a wrong there is a remedy. Anyone wrongfully placed on the list can fill out a government form in triplet and submit it to the TSA. Unfortunately, successfully submitting this notarized form and having it approved does not remove the misidentified person from the Watch List. The explanation, by TSA official Jim Kennedy continues:

[T]he people mistakenly matched to names on the watch list have now been added to a "clearance" list. That doesn't mean their names are erased from the watch list. In fact, travelers who go through the paperwork are told, Kennedy said, that "it will not quote 'remove' you from the list because the person we're still looking for is out there."

The result, according to Kennedy, is that "typically" the formerly misidentified traveler still:

[C]an't check in for flights at an unmanned kiosk and must approach the ticket counter to explain their situation and have an airline employee match their name to the clearance list

. Sounds like a lawsuit waiting to happen. Many trial attorneys are known to be short tempered.

"Testimonial" Hearsay Eliminated in Criminal Trials

But exactly what is "testimonial" hearsay?

Crawford v. Washington, 541 U.S. 36 (2004), written by Justice Scalia, held the use at trial of out-of-court statements made to police by a defendant's wife violated his Sixth Amendment right to confront witnesses against him, even though it was deemed reliable hearsay because it corroborated other testimony and was a declaration against penal interest.

Richard D. Friedman, Professor of Law at the University of Michigan Law School, has a blog dedicated solely to Crawford:

This blog is devoted to reporting and commenting on developments related to Crawford v. Washington, 541 U.S. 36 (2004). Crawford transformed the doctrine of the Confrontation Clause, but it left many open questions that are, and will continue to be, the subject of a great deal of litigation . . .

It appears now, in criminal law, that a witness must be available for cross examination at the time that the witness gives "testimonial" evidence at trial and perhaps at other criminal proceedings such as sentencing. The meaning of "testimonial" evidence, and what proceedings it covers, is still unclear.

Crawford also may put in doubt non-testimonial hearsay exceptions contained in Article VIII of the Federal Rules of Evidence, unless they are "firmly rooted" in the common law of 200 years ago. This might include some exceptions in Rule 803 (witness available) and Rule 804 (witness unavailable).

Therefore, intra-family matters, recanting spouses, evidence from 911 calls that are recorded, and other everyday hearsay situations are now in a state of flux because the U.S. Supreme Court has changed its interpretation of the Confrontation Clause by dropping the "reliable" hearsay exceptions to "testimonial" evidence but leaving an unclear result. The implementation of the legal concept needs sharpening, according to certain appellate judges in Hawaii.

State v. Grace, No. 25-970 (ICA 2005) applied the new Crawford rule to a family argument that allegedly reached the point of an assault. Appellate Court Judge Lim noted that Crawford "radically reinterpreted" a criminal defendant's Sixth Amendment right to confront and cross examine witnesses by narrowing the use of hearsay exceptions. Judge Lim also noted:

Crawford leaves us in a bit of a quandary here, for . . . the Supreme Court did not attempt a comprehensive definition of the core term "testimonial."
Id. at 1374

Perhaps the federal courts will straighten this out before Hawaii's appellate courts spend too much time trying to interpret Justice Scalia's new rule.

Civil Rights Case in District Court

Today's Federal District Court daily calendar had a Rule 16 scheduling conference for a 42 USC 1983 Civil Rights Act case with several veteran litigators on both sides. There are a number of state agencies and officials named in the lawsuit:

Case

CV 05-00566JMS-LEK

Time

09:00

Plaintiff

R.G., an individual; C.P., an individual by and through her next friend, A.W. and J.D., an individual
Attorneys:
Lois K. Perrin Tamara Lange Paul Alston Mei-Fei Kuo Angela L. Padilla Matthew I. Hall Marilyn D. Martin-Culver Ashleigh E. Aitken

Defendant

Lillian Koller, Director of the State Department of Human Services, in her individual and official capacities; Sharon Agnew, Director of Youth Services, etc., et al.
Attorneys:
Lisa M. Ginoza Heidi M. Rian Blair A. Goto Kendall J. Moser John F. Molay Hugh R. Jones Renee N.C. Schoen William J. Wynhoff Dennis K. Ferm

Motion

Rule 16 Scheduling Conference [Tamara Lange by phone: 415-293-6361] [Matthew I. Hall by phone: 415-268-6954]

The next big legal battle in the horizon is a preliminary injunction on December 20, 2005. Once that is decided, one won't need a crystal ball to tell which way the case is headed on the final equitable relief.

Some of the above attorneys are going to have a happy holiday season, and some are not.

British Plan to Abolish Juries Blocked, Not Dead

Apparently, 800 years of favorable experience with the jury system has overridden the knee-jerk reaction of England's Lord Chancellor and Attorney General to several embarrassing losses in high-profile fraud cases.

Last week, Court Watch reported England's top legal figure was pushing to outlaw juries in complex fraud cases by arguing that juries were basically too dumb to understand the prosecution's case. Critics of the proposal, from both the Liberal and Conservative parties, have now blocked it in the House of Lords and believe the government merely put on very weak cases or otherwise mishandled the trial.

One biting criticism of the prosecutor's misguided courtroom strategy came from the Guardian commentary we cited last week. The prosecutors apparently attempted to strengthen weak cases by boring the jury into submission through never resting its case. One trial lasted 14 months, and another lasted 21 months. Jurors were actually resigning from the jury duty.

A BBC article quotes prominent lawyers calling for the idea to be abandoned:

But the president of the Law Society, Kevin Martin, called on the government to "drop the proposal entirely".

"Juries are not to blame for lengthy trials. The solution lies in better case management," he said.

Chairman of the Bar Council Guy Mansfield QC said: "People trust juries, and half a million are called to serve on them each year.

"There is no other part of the justice system which enjoys such public confidence.

"Ministers should drop their controversial plans once and for all."

Helping a Client Engage in a Fraudulent Transfer May Incur Liability

Editor's note: Nov. 27, 2005 -- A staff writer mistakenly believed he could alter this article after it had been edited and posted. The changes have been reversed.

These excerpts from a Third Circuit Court of Appeals case, Morganrogh & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406 (3d Cir. (N.J.) 2002), pretty much speak for themselves:

This appeal raises thorny questions relating to the bounds of legitimate legal advocacy and transgressive participation by attorneys at law in a client's illegal conduct. The plaintiffs, Morganroth & Morganroth, a Michigan law firm, and Mayer Morganroth, Esq. ("Morganroths"), sued John Z. DeLorean in a federal court in Michigan for legal services rendered over approximately ten years. The jury returned a verdict in their favor against DeLorean and Ecclesiastes [*2] 9:10-11-12, Inc. ("Ecclesiastes"), a corporation controlled by him, in a sum exceeding six million dollars. The Michigan Court en joined DeLorean from transferring his assets. It set aside a purported transfer to Genesis III, Inc. ("Genesis") (another corporation DeLorean controlled) of DeLorean's Lamington Farm in New Jersey as a fraudulent conveyance to hinder, delay, or defraud DeLorean's creditors.

The Morganroths have alleged facts that, if proven, would establish that the defendants went beyond the bounds of permissible advocacy; they allege that defendants were active participants and planners in the scheme to obstruct the plaintiffs' efforts to execute on their judgment. Plaintiffs allege that Norris, McLaughlin prepared a confirmatory deed that purported to transfer Lamington Farm from DeLorean to Genesis. The Morganroths assert that the defendants knew this deed to be false when they prepared it and that they did so with the intent of unlawfully aiding DeLorean in his efforts to defraud the Morganroths and to hinder and delay enforcement of the Michigan judgment.

English Government Tries to Abolish Juries

An unusual development is taking place in England, sometimes called the birth place of the jury trial since the right to a jury trial was granted 800 years ago by the Magna Carta. The Lord Chancellor and the Attorney General want to eliminate jury trials for serious fraud cases. Why? Because they think juries are too dumb. Others think it is because the government has mishandled a couple of big cases recently, and they are scapegoating the juries.

The government wants the legal system to adopt a "more holistic approach" and have a judge decide such cases. The Guardian has printed a commentary on this proposal that goes into more depth than the news reports:

[T]he government's decision is not based upon any evidence that juries have stymied fraud trials. On the contrary, Lord Falconer, the lord chancellor, and Lord Goldsmith, the attorney general, are accused by experts of distorting evidence which proves that juries perfectly understand the issues.

Juries are easy targets for those who want to abolish them in both criminal and civil cases. The prosecutors don't like juries in criminal cases, and insurance companies and big businesses don't like juries in civil cases. Perhaps it is because juries reflect the community and are not part of the system. In any event, the push is on in England to get rid of the jury for serious fraud cases. According to the Guardian, the government made little pretense of thoughtful justification:

To fulfil his statutory duty of "consultation" before abolishing juries, Goldsmith summoned about 35 "experts" for a half-day seminar. Among those invited was Professor Michael Zander, an academic expert of the legal system. Zander reported that the seminar lacked "any sense of direction" and ignored America's experience. Falconer admits that he doesn't know why American juries have convicted Bernie Ebbers, Martha Stewart, John Rigas, Dennis Kozlowski and some Enron directors accused of frauds worth hundreds of billions of dollars in recent months.

It's too bad that in the criminal system juries must always convict the accused to prove their "intelligence." Because of constitutional guarantees in the U.S., the jury system is usually under attack in more subtle ways. This is especially true in the civil law. The insurance industry is constantly moaning about medical care evaporating into thin air and the innovation of products being stifled because of jury awards, apparently hoping to influence future juries in their decisions or to convince legislators to override future jury decisions through monetary caps and other restrictions. There is no question that juries can make stupid decisions, just as businesses, the government, lawyers and judges can. But the system does work.

Opponents have apparently forced unspecified compromises.