SBM Blog

Medical Device Industry to FDA: We Hate Upcoming Report, Whatever It Says

In "Study of Medical Device Rules Is Attacked, Unseen," the New York Times reports on the medical device industry's preemptive maneuvers against a report from the Institute of Medicine, to be released Friday, that the industry expects will propose a tougher approval process for devices such as hip implants, hospital pumps, and external heart defibrillators.

Growth Industry: Federal Criminal Laws

From the WSJ's "As Criminal Laws Proliferate, More Are Ensnared":

As federal criminal statutes have ballooned, it has become increasingly easy for Americans to end up on the wrong side of the law. Many of the new federal laws also set a lower bar for conviction than in the past: Prosecutors don't necessarily need to show that the defendant had criminal intent.

Michigan's Health Care Act Challenge First to Reach the U.S. Supreme Court

Lawsuits challenging the constitutionality of the individual mandate, Patient Protection and Affordable Care Act are at various stages across the country, but the challenge originating in Michigan, Thomas More Law Center v Obama, is the first to be taken to the U.S. Supreme Court, after the June 29th decision of a three-judge panel of the 6th circuit upholding the act. Here's the cert petition. (PDF)

Justice Ginsburg Predicts Where Next Supreme Court Justice Will Come From

In a light-hearted speech this week in New Jersey, Justice Ginsburg, a native of Queens, observed, "With justices now bred in four of New York City's five boroughs, should another vacancy arise, Staten Island jurists should stay close to their phones."

(SBM Blog notes that federal Judges Robert Lasnik and Eric Vitaliano come from Queens, as do O.J. Simpson-prosecutor Marcia Clark and lawyer Pat Robertson.)

The speech, reported by CNN's Bill Mears, featured Ginsburg's "greatest hits" of the last term.

HT: How Appealing

Latest Edition of "Please Kick Me" Ethical Violation

Legal Profession Blog notes the reprimand of a Massachusetts lawyer for paying her 2009 and 2010 bar dues with lawyer trust account checks. And we thought this type of behavior was confined to the Quaker State.  (See our prior post, "The Ethical Equivalent of a 'Please Kick Me' Sign").

After the Bar Exam, Before the Results. What To Do?

SBM Blog suggests, based on personal experience, that the number one priority should be sleep. Followed by more sleep. Repeat until symptoms of stress abate.

The Lawyerist offered some good follow-up advice for last year's takers, including "Be prepared to fill your mind with something, and know that sun and fun may not be enough to replace the intensity your brain has become accustomed to."

What about all that reading for pleasure that you've been denying yourself for the last few years?  Some great escapist literature, perhaps? (If you missed The Girl with the Dragon Tattoo series while a 2L, now's your chance to find out what all the chatter was about.)  If you don't want to go cold turkey on the law stuff, you can stay in the legal arena while being transported to another world by tackling Dicken's Bleak House, a long and engrossing read. After which you'll be able to nod knowingly whenever anyone makes a smart aleck reference to Jarndyce v Jarndyce.

And did we forget to mention exercise?  Lots.

Readers, what advice do you have?  What worked for you in that interminable period between the bar exam and the results?  What should be avoided at all costs?

In Memoriam: Hon. James H. Lincoln

James H. Lincoln, of Harbor Beach, died July 23, at the age of 94. Judge Lincoln was a 1944 graduate of the Detroit College of Law. He served as a Wayne County probate judge from 1960 until 1977. During his tenure as judge, he served as president of the National Council of Juvenile and Family Court Judges. A tribute in the Huron Daily Tribune quotes former U.S. Congressman Jim Barcia as saying that the James H. Lincoln Hall of Juvenile Justice was the first courthouse in the state to be named after someone who was still living. Judge Lincoln is survived by his wife of over 70 years, Mary Kimmerling Lincoln (Kim); children Edward, Janet, and Linda; four grandchildren and seven great grandchildren. VIsitation will be Friday, July 29, from 3-8, and Saturday, from 10 until a funeral services begin at 11, at the Ramsey Funeral Home, 425 State Street, Harbor Beach.

Casey Anthony, Civil Suits, and Rule of Professional Conduct 3.4

Having not followed the Casey Anthony trial, I'm at something at a disadvantage offering posts on the case.  But Richard Underwood at Legal Ethics Forum ("Is Jose Hosed?") says there's a professional ethics angle opening up by a number of civil suits that have now been brought against Anthony, so perhaps this will interest those of you who followed the case. Here goes.

Casey Anthony initially explained her two-year-old daughter Caylee's disappearance by claiming that she'd been kidnapped by a babysitter. At trial, Anthony's attorney said that statement was a lie -- that Caylee had accidentally drowned. Three civil suits have been filed since Anthony's acquittal on charges of murdering her daughter -- one by a local babysitter with a name similar to the name of the fictitious babysitter Anthony fingered as a suspect; one by a Texas group that searched for Caylee; and one by a diver who volunteered his services to search.  The question is whether Anthony will be held accountable in the civil litigation for her attorney's statement that her story about the babysitter and the missing toddler that precipitated the searches was a lie. Further, Anthony is appealing her conviction on four counts of lying to law enforcement; what is the implication of her attorney's statements for those appeals?

Underwood points to a 1984 federal case, U.S. v McKeon, in which a criminal defense lawyer's statements bound his client in a retrial as admissions, precluding a change in his theory of the case. Assuming that the court in a civil case would admit her attorney's opening statements in the murder trials, Underwood says that Anthony might argue that the attorney just made the stuff up, and then, what would the lawyer say?  Which brings us around to the relevance to these facts of Rule of Professional Conduct 3.4(c), which says that a lawyer shall not:

(e) during trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client; and

(2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information.

This feels like pretty uncharted territory, beyond the familiar markers of res judicata and collateral estoppel and issue preclusion. Civil suits over the costs associated with a search or the libelous nature of shifting blame to a phantom babysitter with name similarity to the plaintiff are not the same thing as a retrial of the criminal case.  The suggestion that language in opening statement or closing argument in a criminal case could have the same effect as contentions in a civil pleading on subsequent advocacy would likely take the criminal defense bar aback.

NYU's Stephen Gillers (winner of the ABA's 2011 Michael Franck Professional Responsibility Award) makes the point on Legal Ethics Forum:

Isn't the reality that this sort of thing simply cannot be policed, at least not in a criminal case? A lawyer may plan to prove fact X and mention it in an opening, but later does not, perhaps for strategic reasons, or so he will claim. In a criminal case, at least, an inquiry into whether the lawyer had a good faith basis for believing he had evidence of fact X would seem problematic. Another check is that the opposing lawyer can emphasize that the first lawyer did not carry through on the promise in his opening.

How Obama's Judicial Confirmation Record Compares to Bush's and Clinton's

As of this week, 62% of Obama's circuit and district court nominees have been confirmed, according to statistics compiled by the American Constitution Society. At the conclusion of their presidencies, George W. Bush's confirmation success was 70%; Clinton's was and 84%. Regardless of his ultimate confirmation percentage, Roll Call says Obama is making his mark throughout the judiciary with the diversity of his judicial appointments, beyond his appointment of the first Latina U.S. Supreme Court justice. Last week, the Senate confirmed the first openly gay federal judge.  And although the President withdrew his nomination of Goodwin Liu to the 9th circuit in the face of unyielding opposition, he has nominated half of the Asian-Americans on the federal bench. And his nomination for a judgeship in the Northern District of Oklahoma would be the only Native American on the federal bench.

Browse the Internet Using Google Chrome

If you haven’t browsed the Internet using Google Chrome, consider giving it a try.  It is free and installs in minutes, if you are using Windows 7/Vista/XP.  Google Chrome offers faster browsing, enhanced security protections, and a streamlined search engine.  There are also a wide array of add-ins, known as extensions, that help you to customize Google Chrome.  Read the recent CNET review of the newest version of Google Chrome.  Visit the Google Chrome site.

Every week, the Practice Management Resource Center posts a new Tip of the Week.  (Here are the archived tips.) To reach a practice management advisor, call the PMRC Helpline at (800) 341-9715 or e-mail your questions to [email protected].