Governor Snyder is seeking applications from qualified members of the bar for a judgeship in the 39th Circuit Court in Lenawee County. The appointment will fill the seat of the Hon. Timothy P. Pickard. The application deadline is March 19, 2014. Please be aware that you must reside within the judicial district to be appointed. Along with the application, you must submit a copy of your resume to Office of the Governor, Legal Division, 111 S. Capitol Avenue, P.O. Box 30013, Lansing, Michigan 48909.
University of St. Thomas law professor Jerry Organ writes at The Legal Whiteboard on the effect of the ongoing decline in law school enrollment on the LSAT of the law student classes. He reports that the entering first-year class average LSAT profile fell roughly two points between 2010 and 2013, and another point for the latest entering class. Although the declines are uneven, they appear throughout the rankings. Five schools each in the top 50 and 51-100 had a 3 point decline in their median LSAT; three schools ranked 100-144 saw a three point decline; and two of the unranked schools had declines of 5 and 6 points. Organ concludes that in the face of the ongoing application decline, many schools are in a "pick your poison" bind:
A number of schools have picked profile and made an effort to hold profile or come close to holding profile by absorbing significant declines in first-year enrollment (and the corresponding loss of revenue). By contrast, a number of schools have picked enrollment and made an effort to hold enrollment or come close to holding enrollment (and maintaining revenue) but at the expense of absorbing a significant decline in LSAT profile. Some schools, however, haven’t even been able to pick their poison. For these schools, the last three years have presented something of a double whammy, as the schools have experienced both significant declines in first-year enrollment (and the corresponding loss of revenue) and significant declines in profile.
It's the same old story. Scanners don't protect people, people do. The Toledo Blade tells the tale of a loaded semiautomatic handgun in a woman's purse that was picked up by the scanning equipment at the Toledo Municipal Court, but not noticed by the scanner on duty until the gun and its carrier was already through security. The woman and her companion -- and the gun -- were then tracked down in the lobby of the building and cooperated with security. A disciplinary hearing for the inattentive screener is pending. In the end, the scariest part of the story may be this -- the Clerk of Court, who is responsible for security, told the Toledo Blade she didn't learn of the incident until weeks after it happened, when a newspaper reporter brought it to her attention.
A medical malpractice case in Idaho has caused a justice of that state's Supreme Court to pointedly question his colleague's impartiality in a dissent to the Court's decision in favor of the plaintiff. Justice Daniel Eismann :
Courts decide cases in one of two ways: (a) they apply the law to the facts and thereby arrive at the result or (b) they determine the desired result and then twist the law and/or the facts to justify it. The error made by the district judge was applying the law to the facts, which produced a result that the majority does not like.
A dissenting colleague who "entirely concurs" with the Eismann's legal reasoning nevertheless writes:
I am sad that Justice Eismann’s dissenting opinion lowers itself to personal attacks more suited to a school yard argument among teenagers than to a professional legal discourse that should be expected in a judicial opinion.
All of this prompts an Idaho lawyer who has just filed to run for a seat on the Supreme Court to note in an Idaho Statesman guest opinion that Justice Eismann had accused three other justices of being “untruthful” and questioned their impartiality and that the Idaho Supreme Court has sanctioned at least one attorney for far less offensive statements:
Make no mistake about it; the heat that is obvious from reading the Nield opinion smolders beneath every medical negligence case. The Topp case and Idaho’s ethical rules prevent judicial candidates from discussing their views on how special interests may have an effect on the outcome of medical negligence cases as a result of subtle political influence exercised upon the judicial appointment process.
Similarly, judicial candidates would risk sanctions under Idaho’s Code of Judicial Conduct by questioning whether the Nield dissenters’ interpretation of the law violates the Idaho and United States constitutions by applying an arbitrary and unreasonably strict standard to the admissibility of expert testimony that infringes upon the role of the jury. What constitutes the “appearance” of a “commitment” to a position is clearly in the mind of the beholder, adding vagueness to the constitutional problems with Idaho’s “announce clause.”
Meanwhile, it's interesting that the Court's opinion is a "substitute" opinion, and that the original issued the same day was "withdrawn." One can't help but wonder, what it more -- or less-- provocative?
Read more here: http://www.idahostatesman.com/2014/03/02/3057494/free-speech-rules-cost-ua-good.html#storylink=cpy
Meanwhile, it's interesting to note that the opinion prompting the furor is a "substitute" opinion, and that the original issued on the same day has been "withdrawn." One can't help but wonder -- was the original more, or less, controversial?
In Texas, the things people wear to court apparently include cartoon pajamas, exposed underwear, fuzzy slippers, low-cut blouses and "booty shorts." (Michigan stories, anyone?) A Texas judge has now specifically banned such attire, according to this story in the Longview, Texas, News-Journal. And then there's the incriminating stuff. “We’ve had stuff as silly as defendants going up to plea before the bench, and they’ve got a crack spoon hanging around their neck.” ABA Journal also reminds us that this month employees at San Francisco's Civic Center Courthouse protested strict enforcement of an 18-year old dress code that requires them to "look professional at all times," which the court administrator has interpreted as dress shirts and ties for males. As anyone who has ever attempted to enforce or comply with a dress code understands, the story notes that what is considered appropriate for women is "less clear-cut." Outside the courthouse protestors chanted, "Don't hate, we look great."
Chokwe Lumumba, of Jackson, Mississippi, died Feb. 25, at the age of 66. He was mayor of Jackson, Mississippi at the time of his death. Born Edwin Finley Taliaferro in Detroit, Mr. Lumumba was a graduate of Kalamazoo College and a 1975 graduate of Wayne State Law School. His extensive history as a civil rights lawyer is described in this obituary in yesterday's New York Times.
The federal law against "harangues or orations" and using “loud or threatening or abusive language in the Supreme Court Building,”is seldom (if ever?) violated, but it happened this week when a California man interrupted oral arguments to express his displeasure with the Court's decision in Citizens United, declaring “Corporations are not people,” and “Overturn Citizens United.” According to CNN, the justices ignored the outburst and the official transcript makes no reference to it.
The story in Courthouse News says a new walk-up window on the outside of one the nation's busiest courthouses (Pasadena) has cut wait times by as much as two hours. Query how long it takes to find a parking place.
Michigan lawyers who want to know the latest on the work-in-progress that is the new Court of Claims will want to set aside time on Friday to attend a Court of Claims forum at UD Mercy School of Law. Judge Michael Talbot, chief judge of the court, will make a presentation on the nuts and bolts of practice in the new Court, and UDM Law Dean Harris will moderate panels to address the impact on tax and negligence cases and appellate practice. Panelists are Graham Crabtree, Chad Engelhardt, Lynn Gandhi, Richard Kraus, Raymond Morganti, and Gradley Morton. The forum will begin at 2:00 p.m. and conclude by 5:15 p.m. for a complimentary networking reception. Register here.
The genius of Black’s appeal to constitutional text and the original purposes of the framers, is that it allowed him to root his own decisions in something even more authoritative than the precedents he despised. In the era when justices routinely struck down child labor laws and similar regulations, according to Black, “the power of legislatures became what this Court would declare it to be at a particular time” regardless of whether the text of the Constitution justified these limits on legislative power. Black, by contrast, promised to restore the true Constitution that his predecessors had abandoned.
And Damon Root at Reason says that the Toobin piece is embarrassing--to the New Yorker--for suggesting that Justice Thomas's silence signifies inattention:
This is nonsense. I’ve attended a number of oral arguments in the past two years and I’ve routinely seen Thomas leaning forward, watching the lawyers (and his colleagues), and even conferring quite enthusiastically with both Justice Stephen Breyer (to his right) and Justice Antonin Scalia (to his left). In fact, during the first day of the March 2012 Obamacare oral arguments, which centered on whether an 1867 tax law barred the legal challenge to the health care law from going forward, I watched Thomas and Breyer together poring over a massive book that appeared to be a volume of the U.S. tax code. What were they up to? It’s possible Thomas was suggesting a line of questioning for Breyer to use. After all, as Thomas told an audience at Harvard law school, he sometimes helps generate Breyer’s material. “I’ll say, ‘What about this, Steve,’ and he’ll pop up and ask a question,” Thomas said. “So you can blame some of those [Breyer questions] on me.”
Toobin is either himself guilty of not paying attention, or he is perhaps too eager to bend the facts in order to paint his opponents in an unflattering light.
A Chinese woman walked into a law office in New York’s Chinatown and asked to see her lawyer. She had applied for asylum, claiming that she had been forced to get an abortion in China to comply with the country’s family-planning laws, and she was anxious about her coming interview with immigration officials.
She had good reason to be worried: Her claim, invented by her lawyer’s associates, was false.
But the lawyer, John Wang, told her to relax. The process, he said, was straightforward, and as long as she memorized a few details, everything would be fine. “You are making yourself nervous,” he said in Mandarin. “All you would be asked is the same few rubbish questions.”
A noose placed around the neck of a statue of James Meredith at the University of Mississippi on February 16 has led to the suspension of the university's chapter of Sigma Phi Epsilon and the expulsion of three of the chapters members. The noose probably also prompted The Atlantic blog to run "The Dark Side of Fraternities" which talks about why "the fraternity lawsuit is a lucrative mini-segment of the personal-injury business." In it, Douglas Fierberg (Michigan '80), labelled as "the best plaintiff’s attorney in the country," says of fraternities:
Until proven otherwise, they all are very risky organizations for young people to be involved in. [They] are part of an industry that has tremendous risk and a tremendous history of rape, serious injury, and death, and the vast majority share common risk-management policies that are fundamentally flawed. Most of them are awash in alcohol. And most if not all of them are bereft of any meaningful adult supervision.
The Indiana Supreme Court may not agree with that assessment, but on February 13 the court did agree that a former student could sue a fraternity at Wabash College for serious injuries he said he suffered as a result of hazing at one of the college's fraternities, Phi Kappa Psi. At the same time, the court dismissed claims against Wabash College and the national fraternity. Here's the opinion, and a story in the Indianapolis Star.
Responsibilities and Opportunity Offered: An appointment with the U.S. Attorney's Office offers unique and challenging experiences for the highly motivated attorney. Serving as an Assistant U.S. Attorney (AUSA) and assigned to the Criminal Division, Civil Division, Appellate Division, or Branch Office location, you will be part of a dedicated team helping to enforce federal criminal and civil laws that protect life, liberty and property of citizens. Criminal Division assignments include, but are not limited to, the investigation and prosecution of violent offenses, including drug trafficking, public corruption, white collar, and organized crime. Civil Division cases encompass affirmative litigation where the United States is seeking some type of monetary recovery or injunctive relief (e.g., civil rights, judgment enforcement, bankruptcy, asset forfeiture) and defensive cases involving a variety of lawsuits brought against the Federal government.
Qualification Requirements: Applicants must possess a J.D. degree, be an active member of the bar (any jurisdiction), and have at least two years of post-J.D. experience. United States citizenship is required.
Type of Position: All initial attorney appointments in the Department of Justice are made on a time-limited (temporary) basis. Temporary appointments may, or may not, be made permanent without further competition.
Salary Information: Assistant U.S. Attorneys' pay is administratively determined based, in part, on the number of years of professional attorney experience. The range of starting pay (including locality differential applicable to the USAO, Eastern District of Michigan's duty stations) is $51,403 to $157,000.
Location: Currently, we anticipate openings for two AUSAs in the Civil Division at the Detroit office. Additional opportunities are also likely in the near future at the Detroit, Michigan duty station, with occasional vacancies in the Flint and Bay City branch offices.
Application Process and Deadline Date: Applications for this vacancy will be accepted through March 7, 2014. Applicants are evaluated by the Hiring Committee on the basis of such factors as academic performance, trial experience, research and writing ability, oral communication skills, and other legal and community service and experience. Interested persons should send a detailed resume with a cover letter, writing sample(s), and completed questionnaire (see attached) to Jennifer Gorland First Assistant U.S. Attorney Eastern District of Michigan 211 W. Fort Street, Suite 2001 Detroit, MI 48226. For additional information regarding application procedures for AUSA positions, please direct e-mail inquiries to Alicia.Collier@usdoj.gov. Applications must be received and/or postmarked by March 7, 2014.
Department Policies: Assistant United States Attorneys generally must reside in the district to which he or she is appointed. See 28 U.S.C. § 545 for district-specific information.
All initial attorney appointments to the Department of Justice are made on a time-limited (temporary) basis. Temporary appointments may, or may not, be extended or made permanent without further competition.
Cheryl Lohmeyer has been appointed to fill the Monroe County Probate Court seat vacated by the Hon. John Hohman, who resigned to become Michigan's State Court Administrator. Ms. Lohmeyer is a 1996 graduate of the University of Toledo law school. Her practice has involved advocating for children who are victims of abuse and neglect and for parents who are accused of abuse or neglect. She has served as an evaluator and mediator of case settlements for the Monroe County Circuit Court and as an adjunct professor of humanities and social sciences at Monroe County Community College.
An amicus brief submitted by students of Father Gabriel Richard High School in Ann Arbor was accepted by the Michigan Supreme Court ahead of oral arguments in the juvenile lifer cases on March 6th. Here's the brief. The Free Press ran this story about the 16-year old chief brief writer, Matilyn Sarosi. Here's a sample, from the outline of the brief's arguments:
I. WE KNOW FROM EXPERIENCE THAT CHILDREN ARE IMMATURE, IMPULSIVE AND RECKLESS.DECISION-MAKERS, BUT GIVE US TEN YEARS AND WE'LL CHANGE
A. "WHEN I WAS A CHILD, I SPOKE AS A CHILD, I UNDERSTOOD AS A CHILD, I THOUGHT AS A CHILD: BUT WHEN I BECAME A MAN, I PUT AWAY CHILDISH THINGS.” 1 Corinthians 13:11
B. IT IS ROCKET SCIENCE
C. THE EFFECT OF PEER PRESSURE AND NEGATIVE EXTERNAL INFLUENCES IS GREATER ON CHILDREN THAN ADULTS
D. CHILDREN ARE VULNERABLE
E. CHILDREN ARE MALLEABLE BEINGS, CAPABLE OF GREAT CHANGE
F. MILLER REQUIRES INDIVIDUALIZED SENTENCING IN LINE WITH THE 8th AMENDMENT'S PROPORTIONAL PUNISHMENT STANDARD
II. FAITH AND MORALITY ARE AT THE HEART OF THE 9th AMENDMENT
A. VENGEANCE HAS NO PLACE IN OUR JUSTICE SYSTEM
B. TO REDEEM MEANS: "TO BUY BACK"; "TO CHANGE FOR THE BETTER"; "TO REPAIR, RESTORE."- Merriam Webster
An exquisite meditative New Yorker piece, This Old Man, by the incomparable Roger Angell, is a gift for anyone needing encouragement about the daunting journey into the upper decades of life. Within our profession, we need look no further than retired Justice John Paul Stevens, whose vitality shines through in this story by Tony Mauro in the National Journal, and Michigan's own John Reed, who added to his already considerable public service workload by accepting appointment to the task force on the status of the State Bar created by order of the Michigan Supreme Court this month.
A National Jurist study reports that, depending on how you measure it, Cooley Law School's drop in enrollment over the last three years ranks the school either #1 or #2 nationally. Based on the study, Cooley came in first for the biggest drop in raw numbers -- from 3,931 students in 2010-2011 to 2,334 students in 2013-2014, but Cooley's 40.6% decline in overall enrollment was a distant second to University of La Verne Law School's 66.2% decline. La Verne's precipitous drop followed its loss of ABA accreditation in 2011. The median law school enrollment decline was 10.8%.
Cooley's associate dean of enrollment and student services, Paul Zelenski, told National Jurist that the school had anticipated the downturn, so the current situation "was not a surprise," and that Cooley has been active on the recruitment scene by adding new programs and events to attract students when the market recovers.
Lizette Alvarez's news analysis in the New York Times of the jury verdict in the fatal shooting of 17-year old Jordan Davis points to Florida's "stand your ground" statute as responsible for the jury's failure to agree on the premeditated murder count of the charges against the defendant:
“This trial is indicative of how much of a problem Stand Your Ground laws really do create,” said Mary Anne Franks, an associate law professor at the University of Miami. “By the time you have an incident like this and ask a jury to look at the facts, it’s difficult to re-create the situation and determine the reasonableness of a defendant’s fear.”
Michael Dunn claimed self-defense, and so the Judge instructed the jury on Florida self-defense law by reading the relevant statutes. These statutes include the Stand Your Ground language. Like the language about child custody disputes, at many trials where self-defense is at issue, the Stand Your Ground language will be irrelevant, even if it is read aloud by the Judge.
The jury apparently concluded that Dunn was lying when he testified that he repeatedly fired his gun because he was reasonably in fear of being imminently murdered. Therefore, the Stand Your Ground detail about permissible self-defense was irrelevant.
People seem to be using "lead" as the past tense more and more. I have seen it not just in student drafts and blog posts, but in newspapers, books, and other sources edited by people who ought to know better. I'm not sure what the problem is; perhaps people are analogizing to the verb "read." The present tense and past tense of that verb are the same. Or perhaps they are comparing it to the element "lead," which is also pronounced "led."
Whatever, the reason, it's not proper English.
Hear, hear! Or, as even Ivy League educated people seem to be saying more and more -- "here, here!"
The irrepressible Judge Richard Posner, exclaiming eruditely in United States v. Boyce, calls for the elimination of the present sense and excited utterance exceptions to the Rules of Evidence:
It is time the law awakened from its dogmatic slumber. The “present sense impression” exception never had any grounding in psychology. It entered American law in the nineteenth century, see Jon R. Waltz, “The Present Sense Impression Exception to the Rule Against Hearsay: Origins and Attributes,” 66 Iowa L. Rev. 869, 871 (1981), long before there was a field of cognitive psychology; it has neither a theoretical nor an empirical basis; and it’s not even common sense— it’s not even good folk psychology.
The Advisory Committee Notes provide an even less convincing justification for the second hearsay exception at issue in this case, the “excited utterance” rule. The proffered justification is “simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication.” The two words I’ve italicized drain the attempted justification of any content. And even if a person is so excited by something that he loses the capacity for reflection (which doubtless does happen), how can there be any confidence that his unreflective utterance, provoked by excitement, is reliable? “One need not be a psychologist to distrust an observation made under emotional stress; everybody accepts such statements with mental reservation.” Robert M. Hutchins & Donald Slesinger, “Some Observations on the Law of Evidence: Spontaneous Exclamations,” 28 Colum. L. Rev. 432, 437 (1928). (This is more evidence that these exceptions to the hearsay rule don’t even have support in folk psychology.)
As pointed out in the passage that the majority opinion quotes from the McCormick treatise, “The entire basis for the [excited utterance] exception may ... be questioned. While psychologists would probably concede that excitement minimizes the possibility of reflective self‐interest influencing the declarant’s statements, they have questioned whether this might be outweighed by the distorting effect of shock and excitement upon the declarant’s observation and judgement.” 2 McCormick on Evidence § 272, p. 366 (7th ed. 2013). The Advisory Committee Notes go on to say that while the excited utterance exception has been criticized, “it finds support in cases without number.” I find that less than reassuring. Like the exception for present sense impressions, the exception for excited utterances rests on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.
I don’t want to leave the impression that in questioning the present sense and excited utterance exceptions to the hearsay rule I want to reduce the amount of hearsay evidence admissible in federal trials. What I would like to see is Rule 807 (“Residual Exception”) swallow much of Rules 801 through 806 and thus many of the exclusions from evidence, exceptions to the exclusions, and notes of the Advisory Committee. The “hearsay rule” is too complex, as well as being archaic. Trials would go better with a simpler rule, the core of which would be the proposition (essentially a simplification of Rule 807) that hearsay evidence should be admissible when it is reliable, when the jury can understand its strengths and limitations, and when it will materially enhance the likelihood of a correct outcome.
A new Michigan Supreme Court task force will work to decide if the State Bar of Michigan should continue as a mandatory bar attorneys must join in order to practice law in Michigan. The Supreme Court issued an order today to create the task force in response to a request made by the State Bar that the court facilitate this discussion.
The new task force will determine whether the State Bar's duties and functions can, "be accomplished by by means less intrusive upon the First Amendment rights of objecting individual attorneys," consistent wilth Falk v State Bar of Michigan and Keller v State Bar of of California. "At the same time the task force should keep in mind the importance of protecting the public through regulating the legal profession, and how this goal can be balanced with attorneys' First Amendment rights," the order said.
The task force will be chaired by former SBM president and retired Berrien County Chief Judge Alfred Butzbaugh. Justice Bridget McCormack will serve as the court's liaison to the task force and Supreme Court Commissioner Nelson Leavitt will serve as its reporter. Other task force members include SBM Commissioner Danielle Brown, SBM Past President Thomas Cranmer, Michigan State Bar Foundation Board Trustee Peter Ellsworth, SBM Past Commissioner John McSorley, SBM Commissioner Colleen Pero, SBM Commissioner and Michigan Court of Appeals Judge Michael Riordan, SBM President-Elect Thomas Rombach, University of Michigan Law School Professor and former dean John Reed, Michigan State Representative and Speaker Pro Tempore John Walsh, SBM Executive Director Janet Welch, and SBM Representative Assembly Vice Chair Vanessa Williams.
Two separate stories from different sides of the ocean about associates perhaps being encouraged to engage in unethical behavior does make one wonder whether reliance on the efficacy of the traditional partner-associate mentoring is always well-placed. Above the Law recounts the story from Texas of an associate sent to hang out with potential jurors in a room forbidden to lawyers, because, says ATL, "if someone is going to get in trouble, let it be an associate." Meanwhile, a post from the UK blog Lawyer Watch comments on a "depressing case" involving allegations of interrelated dishonesty by a partner and the partner's assistant:
The problems faced by an assistant in this position are manifold. They are compromised by their own culpability or contribution to any mistakes or (if there were any) prior dishonesty. My sense from talking to lawyers in difficult ethical positions is that responsibility is shifted implicitly or overtly to the partner. The dangers are obvious, but as an assistant in a law firm the economic and social need is to serve the partner. The client (and their case) is theirs. They get to take the tricky decisions.
It's hard enough being an associate these days without being bumped off the straight and narrow by someone who's supposed to be guiding you to professional success.