NJ: Criminal Defense Malpractice

Thu, 22 Mar 2012 10:29:53 GMT

McGrogan v. Till, 167 N.J. 414, 771 A.2d 1187 (2001)

NJ: Underlying criminal investigation

Facts: The client hired the lawyer to represent him in connection with a criminal investigation. The client subsequently files a legal malpractice claim against the lawyer, for his representation during that investigation. When the client brought that claim, New Jersey courts applied a six-year statute of limitations to all legal malpractice claims. The trial court found that the client’s claim was barred by the six-year statute of limitations. The Appellate Division affirmed the trial court’s finding, but also asserted that an applicable two-year statute of limitation also barred the client’s claim. The Appellate Division reached this conclusion based on an earlier New Jersey Supreme Court decision, Montells v. Haynes, 133 N.J. 282 (1993), in which the Court held that the statute of limitations applicable to a particular claim depends on the nature of the complainant’s injury. Thus, the Appellate Division determined that where a client has alleged his defense attorney in a criminal prosecution case has committed legal malpractice, the nature of the injury is such that a shorter statute of limitations period applies than in other legal malpractice cases.

Issue: Where a client brings a legal malpractice claim allegedly committed by his defense attorney in the context of a criminal prosecution, should the court apply a two-year statute of limitation instead of the six-year statute of limitation traditionally applied to legal malpractice claims?

Ruling: No. In New Jersey, a six-year statute of limitations is applied to all legal malpractice claims.

Lesson: The court reasoned that the application of a six-year statute of limitations period to all legal malpractice cases has been an “uncontested principle in New Jersey decisional law” for over twenty-five years. The court recognized that there would be significant consequences resulting from a change to the statute of limitations period, considering the fact that the six-year period had been so widely accepted and that attorneys had come to rely on that statute of limitations in conducting themselves to avoid liability. Nevertheless, the court considers, for argument’s sake, whether a shorter statute of limitations might be more appropriate. Unlike the Appellate Division, the Supreme Court states that pursuant to Montell, if a shorter statute of limitations period is appropriate, it must be appropriate for all legal malpractice cases; the “nature of the injury” analysis pertains to the type of claim, not the particular injuries alleged in a specific case. Ultimately, the court determines that the “nature of the injury” in all legal malpractice cases is the breach of the attorney’s duty to his client, manifested in his negligent performance. As such, the traditional six-year statute of limitations continues to be the appropriate period for legal malpractice claims, since that period pertains to “actions involving tortious injury to the rights of another.”

Become a Member of the Federal Bar Association

Wed, 21 Mar 2012 16:22:02 GMT

Become a Member of the Federal Bar Association!

Click here for an application. The membership fee is only $30.

Why should you be a member of the FBA?
The Federal Bar Association (FBA), founded in 1920, is dedicated to the advancement of the science of jurisprudence and to promoting the welfare, interests, education, and professional development of all attorneys involved in federal law. The FBA represents the Federal legal profession. We consist of more than 15,000 federal practitioners, including over 1300 Article III, Magistrate and Bankruptcy judges. Our members belong to 87 chapters around the United States and run the gamut of federal practice: attorneys practicing in small to large legal firms, attorneys in corporations and federal agencies, and members of the judiciary. The FBA is the catalyst for communication between the bar and the bench, as well as the private and public sectors.

Federal Bar Association Mission Statement
The mission of the Association is to strengthen the federal legal system and administration of justice by serving the interests and the needs of the federal practitioner, both public and private, the federal judiciary and the public they serve.

Federal Bar Association Vision Statement
The Association will be recognized as the premier bar association serving the federal practitioner and judiciary.

Advocacy
The opportunity to make a change and improve the federal legal system through grassroots work in over 85 FBA chapters and a strong national advocacy.

Networking
Connect with a vast network of federal practitioners extending across all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands.

Leadership
Governance positions within the association help shape the FBA’s future and make an impact on the growth of the federal legal community.

Learning
Explore best practices and new ideas at the many Continuing Legal Education programs offered throughout the year—at both the national and chapter levels.

WHY IS THE FBA RELEVANT? The FBA is relevant because it:

1. monitors and often advocates on federal issues that impact the practice of federal lawyers and the courts

2. keeps its members abreast of current federal issues

3. provides opportunities for scholarship and education to the profession

4. provides opportunities for judges and attorneys to professionally and socially interact

5. promotes high standards of professional competence and ethical conduct

PA: The Pro Se Plaintiff...and the Rules of Law

Wed, 21 Mar 2012 10:13:06 GMT

Bresnahan v Schenker; 498 F. Supp 2d 758 (E.D PA, 2007)

PA: Procedure for filing a legal malpractice claim.

Student Contributor: Matthew Solomon

Facts: Client was represented by Attorney in a criminal matter and was convicted of multiple counts of theft by failure to make required dispositions of funds received. The Client, who is not incarcerated, decided to file a legal malpractice lawsuit pro se against his former public defender. The Client still had matters pending in the court of appeals at the time of filing his malpractice claim.

Issues:

1. Can a pro se litigant file a Certificate of Merit stating one’s self as a licensed professional?

2. Must a plaintiff obtain post-trial relief on the basis of attorney error before filing a legal Malpractice claim?

3. Did the plaintiff state a claim upon which relief can be granted?

Ruling:

1. NO. In all cases where a plaintiff seeks to assert professional negligence claim a plaintiff must submit a certificate of merit that states either “an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised … fell outside the acceptable professional standards…or expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim” A licensed profession is defined to include “an attorney at law.” Since it was improper, a judgment of non pros is awarded, but plaintiff is not barred from commencing another suit upon same course of action.

2. YES, as a matter of law, while an appeal is still pending a plaintiff may not file a professional negligence. A plaintiff must establish “he has pursued post-trial remedies and obtained relief which was dependent upon attorney error.”

3. NO, since the plaintiff did not exhaust post-trial remedies and did not file a timely certificate of merit the Defendants motion to dismiss was granted and the Plaintiff’s complaint was dismissed without prejudice if he prevails in his state court post-trial appeals on the basis of attorney error.

Lesson: In Pennsylvania, to have a valid professional negligence claim, one must exhaust all post trial relief before filing a malpractice claim. Also one must make sure that they follow exactly what the statute defines. If is one is filing a pro se action, and their own testimony is necessary to prove professional negligence, one must have a licensed professional also agree that there is professional negligence.

What Research Skills Do Lawyers Need?

whisner@u.washington.edu (Mary Whisner) — Tue, 20 Mar 2012 18:37:59 GMT

The American Association of Law Libraries is currently conducting a survey of legal practitioners to identify the current and future research skills that law school graduates need to succeed in legal practice. This information will help law schools determine how to develop their curriculum to meet the research needs of their graduates. Please consider taking a minute to share your thoughts here: http://www.surveymonkey.com/s/skillsforlegalpractice. Responses are anonymous.

If you have any questions, please contact Susan Nevelow Mart (Susan.Nevelow.Mart [at] colorado.edu) or Shawn Nevers (neverss [at] lawgate.byu.edu), the chair and vice chair of the Task Force on Identifying Skills & Knowledge for Legal Practice.

Prosecutor Found to Have Commented on Case Using Alias

whisner@u.washington.edu (Mary Whisner) — Tue, 20 Mar 2012 18:37:21 GMT

A New Orleans businessman being investigated by the local U.S. Attorney noticed that comments on the local newspaper's website seemed to show an insider's knowledge of the case. He hired a forensic linguist to analyze the comments, which were found to match the writing style of court filings from the prosecution. And now one of the prosecutors has admitted that he wrote the comments about the case (and others) using a pseudonym. 'Mencken1951' unmasked: It is federal prosecutor Sal Perricone, Times Picayune, March 15, 2012 (Nola.com). He has been recused from cases on which he commented, and the U.S. Attorney has asked the Department of Justice Office of Professional Responsibility to review his actions.

Hat tip: Ars Technica via Volokh Conspiracy.

Queen’s Makes “Outlines” Before Final Exams

Tue, 20 Mar 2012 14:42:53 GMT

The law students at Queen’s University recently celebrated their annual talent show “Lawlapalooza”, and kicked things off with this parody of Drake’s “Headlines”. To all those law students preparing for final exams (and everyone who remembers what that’s like): enjoy.

Ms. JD 2012 Summer Public Interest Scholarships

Tue, 20 Mar 2012 14:40:06 GMT

Ms. JD is proud to announce its 2012 Summer Public Interest Scholarships.
Winners will receive a $250 prize to support their continued commitment to public interest work. Women law students entering their second or third year at an accredited U.S. law school and working the summer of 2012 at least 35 hours per week for a minimum of 6 weeks at a government agency or nonprofit organization are eligible to apply. Unpaid judicial externs also qualify. Applications are due no later than March 31, 2012 and recipients will be notified by April 10, 2012.

To apply, please send the following application materials:

(1) Resume

(2) Anticipated Summer 2012 Employer (Name, City), Job Title, & Dates of Employment

(3) Expected Summer Funding from Other Sources

(4) Essay (should not exceed 1000 words) on the topic:

"What about law school presented an unexpected challenge? What have you done to successfully meet this challenge? Winning entries will be those that tackle a common law school situation and provide concrete advice."

Please email your application materials to khan@ms-jd.org by March 31, 2012.

Nassau County Bar Association We Care Diversity Scholarship

Tue, 20 Mar 2012 14:30:19 GMT

The Nassau County Bar Association (NCBA) is providing the WE CARE Diversity Law School Scholarship to a deserving Touro Law student scheduled to graduate in May 2012 or May 2013. The amount of the scholarship is $2,500.

Please submit a one page essay explaining how you plan to promote diversity in your practice of law in Nassau County. For more information, please click on the picture below.

The essay is due on August 27, 2012. Please send the essay as a Word document to Marie Koch, Director of Student Services and Scholarship Aid, at mkoch@tourolaw.edu or deliver a hard copy to the Office of Student Services, room 302.

*Prior recipients are not eligible for this scholarship.

Queens County Bar Association Scholarship

Tue, 20 Mar 2012 14:09:18 GMT

The Queens County Bar Association will be awarding a $1,000 scholarship to a deserving law student in the spring. Click on the pictures below for a copy of the QCBA application which consists of four (4) pages. Please complete the entire application. All information submitted will be held strictly confidential.

The scholarship will be based upon personal financial need, a commitment to community service and academic achievement as demonstrated by your personal statement and recommendation letters. If you have not been involved in community service or public interest law, you will not qualify. You must be currently enrolled in a law school in the Metropolitan Area or be a resident of Queens County. All are encouraged to apply.

The recommendation letters must be attached to the application. FAXES WILL NOT BE ACCEPTED.

Forward your completed application to: Scholarship Committee, Queens County Bar Association, 90-35 148th Street, Jamaica, New York 11435. Deadline: April 20, 2012.

Judge John R. Brown Scholarship Foundation Nineteenth Annual Brown Award

Tue, 20 Mar 2012 13:31:03 GMT

The Judge John R. Brown Scholarship Foundation is sponsoring the Nineteenth Annual Brown Award for Excellence in Legal Writing. This year the stipend for the winner is $10,000.

Please click on the picture below for more information.

Deadline: June 4, 2012

NY: Agreeing that Fees are Reasonable as a Condition to Representation

Tue, 20 Mar 2012 09:51:13 GMT

Landa v. Blocker, 87 A.D.3d 719, 928 N.Y.S.2d 779 (App.Div. 2d Dep't 2011)

NY Underlying Matrimonial

Student Contributor: Richard Sadowski

Facts: The plaintiff, an attorney, represented the defendant in her divorce. The plaintiff commenced this action to recover the legal fees charged in the matrimonial action based on the theory of an account stated. The defendant brought a counterclaim for, among other things, legal malpractice. The Supreme Court granted the plaintiff’s motion for summary judgment based on the theory of an account stated.Plaintiff timely submitted legal invoices “setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon.” In opposition, defendant submitted an affidavit denying she acquiesced to the correctness of the invoices. She claimed that she signed the invoices because plaintiff refused to continue his legal representation until she did so. She asserted that she did not intend to give up her right to ever challenge the invoices.

Issue: Was there a triable issue of fact as to whether defendant’s acts of signing the invoices were acquiescence to their correctness?

Ruling: Yes, the court found there to be a triable issue of fact as to whether the act of signing the invoices constitute acquiescence to the amounts of the invoices. The court points out that the attorney’s refusal to continue work on the case without first obtaining the defendant’s signature would not constitute duress to invalidate the documents. However, here the defendant does not seek to invalidate the invoices. She only seeks to challenge plaintiff’s summary judgment motion by raising a question of fact as to whether she acquiesced to the amounts on those invoices.

Lesson: A client’s affidavit can be enough to present a triable issue of fact as to whether the client’s signature on legal services invoices represents intent to agree to the amount of those invoices. But this case seems to raise another ethical issues such as, is it proper for a lawyer to condition continued representation on a client's agreeing that the fees charged are reasonable?

NY: Double Header: Case within a case, Within a Case...Plaintiff's verdict Upheld

Mon, 19 Mar 2012 13:42:18 GMT

Christ v Law Offs. of William F. Levine & Michael B. Grossman, 72 A.D.3d 721 (2d Dep't 2010)

NY: Underlying legal malpractice suit

Student contributor: Zahava Schwartz

Facts: The underlying case was another legal malpractice action where the clients alleged that the lawyer did not timely bring a property damage claim from a sewer backup at their house against the village. Clients obtained another attorney, defendant in this case, to represent them in that underlying legal malpractice suit but the lower court granted that attorney’s motion for summary judgment dismissing the complaint. That court found no triable issues of fact in regards to the village’s negligence because there was no evidence to show that the sewer backup was recurring or that the village had notice of that defect. Subsequently, plaintiffs discovered documents that there was a history of backups in that village and that both attorneys had made a freedom of information law requests for those documents yet failed to follow up on that request. Accordingly, plaintiffs brought a legal malpractice action alleging that the defendants did not obtain those documents prior to the dismissal. To prevail on this legal malpractice claim they needed to prove that they would have obtained a successful judgment but for the attorneys negligence to obtain those documents. A trial was held on whether the underlying case had merit and the jury returned a verdict that was favorable to the plaintiffs. The defendant made a CPLR 4404 (a) motion “to set aside the jury verdict and for judgment as a matter of law, or to set aside the jury verdict as contrary to the weight of the evidence and for a new trial.” The lower court granted that motion and directed a new trial on that issue. Plaintiffs appealed and the defendants cross-appealed that the lower court should have entered a judgment as a matter of law for the plaintiff.

Issue: Was the lower court correct in granting defendants CPLR 4404(a) motion?

Rule: No. The lower court should have denied the defendants motion to begin with. “To be awarded judgment as a matter of law pursuant to CPLR 4404 (a), a defendant has the burden of establishing that there is no rational process by which the jury could find for the plaintiff against the moving defendant. The plaintiff's evidence must be accepted as true, and the plaintiff is entitled to every favorable inference which can reasonably be drawn from the evidence.” In this case the defendants did not meet that burden and the plaintiffs’ expert testimony established that the village did not properly maintain their sewers. “A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached its verdict by any fair interpretation of the evidence” which is not a question about law but rather it is discretionary and about balancing factors. In this case, the jury’s verdict that the village was negligent was supported by a fair interpretation of the evidence.

Lesson: It is a tough burden to have a CPLR 4404 (a) motion granted. It entails the moving party to establish that there is no rational process by which the jury could find for the non-moving party. Also, a jury verdict should not be set aside contrary to the weight of the evidence unless the jury could not have reached that verdict by any fair interpretation which is determined by multiple factors and is discretionary.

Project Terrarium

Mon, 19 Mar 2012 13:36:25 GMT

Here in Georgia, March means (in no particular order): daffodils, my birthday, a new tennis season, St. Patrick’s Day, mild weather perfectly suited to patio dining with Dave and the FatDog, more daylight in the evening and garden centers freshly stocked with all manner of flowers and plants. These things make me exceedingly happy. To celebrate the arrival of spring, my mom and I recently spent a Sunday afternoon in the sun assembling terrariums (terraria?). Part science demonstration, part decoration, these lovely self-contained gardens evoke the Victorian chic that has been popping up all over lately and provide plenty of fodder for conversation and admiration.

Because sharing is caring, and of course I care about y’all, I thought it would be fun to provide a tutorial for making your very own tiny environment. So, in this post, I’ll first show you what supplies you need and how to choose the right container and plants. Then, I’ll give you step-by-step instructions for assembling the terrarium. Finally, I’ll provide some tips for proper care of your new little world. I’ve also provided my contact info if you love them, but aren’t so much into the DIY thing.

Gathering the Supplies

Even though they look fancy, terrariums are deceptively simple to put together. With a little bit of effort and planning, they can be done fairly inexpensively as well. Moreover, by making multiple terrariums at once, you can reduce the cost of each one even further.

Choosing a Container

When selecting a container for your terrarium, keep in mind that you should pick one that is glass and has a relatively tight sealing lid (as an aside, open containers are sometimes used; however, that is not a true terrarium my friends, that’s just a glass flower pot). Make sure that your hand can fit comfortably through the opening, too. I’ve seen wine bottles and other small-necked vessels used, but placing the plants in those requires chopsticks or tweezers. It also adds a whole extra layer of complexity and dramatically increases the likelihood of things being thrown across the room in a fit of frustration. Finally, consider the size and shape of the container, and determine 1) whether it will accommodate the number and types of plants you have in mind, and 2) how it will fit in the space you’ve chosen to display it.

I found an old glass cookie jar and a huge mason jar while perusing a favorite local antique store with Victoria one day during lunch. I thought it would be fun to repurpose these vintage containers, and as an added bonus, the two of them together cost less than ten bucks!

Picking Your Plants

Try to select plants that need only low to medium indirect light and can tolerate a humid environment. Also, choose plants in a variety of colors, textures and sizes to give your terrarium added visual interest. If you look carefully, you’ll see that many small potted plants can be divided into two or more pieces; by doing so, you can make several terrariums with a variety of plants for very little money. I also purchased a bowl of live moss to add as ground cover and to keep the soil moist. Ferns, mosses and other non-flowering plants work well. Avoid succulents, however, as the high humidity inside the terrarium will cause them to rot.

Other Ingredients

In addition to your containers and plants, you will need pea gravel or other small stones, activated charcoal (this is sometimes also called activated carbon, and can be found in the fish tank section of the pet store), dried sphagnum moss and potting soil (don’t use dirt from the ground, as it can contain microbes and fungi). You’ll also want to have a spray bottle handy, as well as an implement to help move dirt and plants into place; my mom had the genius idea of using a small telescoping back scratcher – it worked like a charm!

Assembling Your Terrarium

Now that you’ve got everything ready, it’s time to build a terrarium!

First, add 1 1/2-2″ of pea gravel in the bottom; this will help with drainage.
Cover the gravel with a thin layer of activated charcoal (about 1/4 cup); it will control any odors and filter the water that drains down.
Now, completely cover the charcoal with dried sphagnum moss, which prevents the soil from draining down into the bottom layers. The moss will be a little bit poofy, but don’t worry – the weight of the soil and plants will pack it down.

At this point, you should have something that looks sort of like this:

Keep in mind that the size of each of the base layers will depend upon the size and shape of your container. While you’re filling it with the first few ingredients, make sure you save enough room for a fair amount of potting soil and your plants.

Now, add a few inches of potting soil on top of the moss – enough for the plants to root into. If you’re worried about your plants having enough headroom, you might want to hold them up next to the container and eyeball it. You can also play around and build little hills with the soil:

It’s time to plant! Place your plants in the terrarium, making sure not to crowd them too much. It’s easy to get overzealous; trust me, I know. Play around with different configurations to see what looks best before you tuck them into the soil. Then, once your plants are positioned, add a little more soil around them and pat it down.
Finally, plant some live moss on the surface of the soil. It looks pretty and also helps keep the soil damp. Some people also like to add whimsical miniature figures to their terrariums; this is a matter of personal preference.
Before you close your terrarium, spray a few squirts of water into it. It’s important to use a spray bottle because it allows you to carefully control the amount of water that gets added.

And there you have it: Your very own little terrarium!

Caring for Your Terrarium

Now that you’ve completed your terrarium, the hard work is done. However, you’ll still have to keep an eye on it to make sure it’s thriving.

Check for excess condensation. Some condensation is normal, but if there’s too much, open the terrarium and let it air out for a day or so.
Conversely, also check the soil to make sure it’s damp. Use your spray bottle to add a little bit of water if the soil feels dry.
Don’t use fertilizer in your terrarium because you don’t want to encourage a lot of growth.
Once in a while, prune the flowers and foliage that are dead, wilted, yellowed or too large. If a plant dies altogether, remove it immediately.

Don’t Want to Get Your Hands Dirty?

I can help! If you want a terrarium of your own, but don’t want to make one, send me an e-mail and I am happy to provide options for building one on commission. Mother’s Day is fast approaching, and they make great birthday gifts, too.

Alright, now that I’m done with my shameless plug, it’s your turn to tell me: Do you have a terrarium at home or in your office?

NPR Legal Crossword Puzzle

Mon, 19 Mar 2012 12:47:29 GMT

NPR just released a legal crossword puzzle. An Across Lite and pdf version is available on their website. Solutions will be released March 20.

Can You Imagine a World Without Lawyers

Sun, 18 Mar 2012 16:36:14 GMT

NJ: The Lawyer/Broker Conflict

Fri, 16 Mar 2012 11:39:59 GMT

Lovett v. Estate of Lovett, 250 N.J. Super. 79, 593 A.2d 382 (Ch. Div. 1991)

NJ: Underlying will and estate contest

Student Contributor: James Quinn

Facts: Plaintiffs are two former guardians and children of decedent, who passed away during this action. They allege malpractice by attorney in drafting a more simple will for their father, eliminating a more complex will that had been in existence. They are additionally claiming attorney (“defendant”) committed malpractice by allowing decedent’s wife to have power of attorney over the decedent. There were tape recordings of dialogue during the drafting of new testamentary writings, and decedent’s wife remained mostly quiet during drafting. However, she sold three properties of decedent using her power of attorney. Defendant acted as lawyer and broker, taking commission instead of attorney fees for sale of properties. Wife passed away, the plaintiffs obtained guardianship over their father, and began this action against defendant.

Issues: 1. Plaintiffs allege negligence, stating that defendant should have had separate counsel review documents, should have held all will conversations outside presence of decedent’s wife, and gotten a psychiatric evaluation to prevent will challenges
2. Did defendant breach his ethical duty by acting as lawyer and broker for sale of home, and accepting commission instead of legal fees?

Rulings: 1. Defendant was not negligent in executing the new will. Although plaintiff relies on numerous instances, their claims lacks direct proof. The actions taken by defendant were proper with regard to the will, there did not exist a conflict of interest by granting power of attorney to wife and writing husband’s will, a lawyer’s search for information need to be reasonable to inform his client, and The court wrote:

“I am not persuaded that [the lawyer] did not employ the knowledge, skill and ability ordinarily possessed and exercised by other members of the Bar similarly situated. Nor have I concluded that the prudence and care that he did exercise was unreasonable. Plaintiffs have therefore failed to satisfy me by the preponderance of the evidence that defendant's actions constituted legal malpractice” (92-93)

2. An attorney cannot act as broker and attorney in the same transaction. Simply labeling commission as fees will not immunize the attorney from an ethical violation. In doing so, he violated an ethical obligation to his client. The steps by the defendant were not ancillary to his role as attorney. However, the plaintiffs failed to establish legal malpractice was proximate cause of plaintiff’s losses. Defendant was barred from receiving commission for sales.

Lesson: Plaintiffs in legal malpractice case must show direct proof to show breach of attorney-client relationship. That breach must demonstrate the lawyer did not employ knowledge, skill and ability of similarly situated. Additionally, an attorney should never act as broker and attorney in real estate transaction. Attorney will be barred from collecting fees, and if proximate cause is shown to plaintiff losses.

The Two What?

Fri, 16 Mar 2012 02:31:23 GMT

This year marks the 20th anniversary of the release of one of the greatest legal comedies, My Cousin Vinny and some websites are paying homage to the classic, in particular because it touches on so many aspects of law and lawyers (h/t: ATL). Even though I love the movie, I've been reluctant to take the time to write a post about some silly nonesense while tying it to a movie about the Deep South starring the father of the bride of the Pauley Shore classic Son-in-Law, the kid from Karate Kid, and the monster from The Munsters. But in the last 24 hours, these three separate items reminded me of the movie:

I shot the clerk?

Orin Kerr blegged yesterday about what material is helpful for learning Evidence Law. Well number one on that list is a moped riding law professor with chiseled hair. After that, My Cousin Vinny was the single-best source I relied upon to learn evidence. Even to this day, I often think of the movie when dealing with evidentiary issues. Why? Because the movie touches on nearly every aspect of Evidence Law. That's why I would encourage both teachers and students of Evidence Law to watch the movie ad nauseam. It comes in handy. If there is one subject that isn't dealt with adequately by the movie, it's probably the hearsay rule. Even then, if you're an evidence nerd, you probably noticed the use of the opposing party statement exception from the definition of hearsay when the Sheriff testifies about interrogating the younger Gambini:

Sheriff Farley: "I asked him if he did it. And he said, 'I shot the clerk.' I asked him again. And again he said, 'I shot the clerk.'"

If only the FRE addressed Brooklyn-speak. But in all seriousness, if you become a litigator, particularly in larger matters, you will almost certainly encounter damaging e-mails that the other side claims to have been written in jest or as sarcasm or satire, etc. Don't be shocked if the deponent looks at the damning e-mail and says, "Yeah I wrote that, but I was clearly joking. See the smiley face there?"

And what is this a picture of?

Speaking of depositions, co-blogger Patrick complained yesterday about law school not teaching the importance of laying a proper foundation. Putting aside the rather weighty question of how well law school prepares young graduates to actually practice law (which is actually the subject of an entire scene in the movie), all fans of the movie know that before Vinny could crack the case in open court, he had to lay a proper foundation for the key photo.

Vinny: Your Honor, this is a picture taken by my fiancee outside the Sack O' Suds. Do we agree on this?
Prosecutor: Yeah.

***
Vinny: Miss Vito, did you take this picture?
Ms. Vito: You know I did.
Vinny: And what is this picture of?
Ms. Vito: You know what it's of.

No matter what case, no matter what the circumstances, I always think of "You know what it's of" to remind myself that every exhibit needs a proper foundation. And yes, the above dialogue can be sufficient foundation given the other side did not raise any objections that the photo in fact depicted the tire marks outside the crime scene.

It's called disclosure, you dickhead!

Today, the DOJ released an extensive report on prosecutor misconduct in the prosecution of the late-Senator Ted Stevens. Specifically, prosecutors failed to turn over exculpatory evidence in their possession. The BLT has extensive coverage of the issue. It's likely that this kind of crap happens far too frequently, but never gain the publicity they do when the defendant is a high-profile politician. So, naturally, because the misconduct affected one of their own, Congress is now ready to act. Whatever the motivations that spurred Congress to act, I hope the bill introduced by Sen. Murkowski will gain some steam and become law. It's a sad state of affairs that discovery violations are the wild wild west in the criminal arena, but relatively well-governed in civil matters.

Of course, getting a glimpse at the prosecutor's files plays out a bit more smoothly in the case of Vinny.

Ms. Vito: You stole his files?
Vinny: I didn't steal his files. Listen to this. I'm just ready to finesse him. I'm starting to finesse him. I got him goin'. He offers to have his secretary copy everything for me.
Ms. Vito: Terrific. You're a hell of a bonder.
Vinny: What's this? You readin' this book?
Ms. Vito: Yeah.
Vinny: Do me a favor. Okay? Don't read this book. Okay? Thank you very much.
Ms. Vito: Alright. Don't you wanna know WHY Trotter gave you his files?
Vinny: I told you why already.
Ms. Vito: He has to, by law, you're entitled. It's called disclosure, you dickhead! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises.
Vinny: [Stare]
Ms. Vito: They didn't teach you that in law school either?

The answer to Ms. Vito's question appears to be no in the case of the AUSAs prosecuting Ted Stevens, the AUSAs prosecuting Broadcom executives in the securities backdating trial, the AUSAs prosecuting Lindsey Manufacturing and its executives for violation of the FCPA, just to name a few.

Bonanza

Thu, 15 Mar 2012 22:02:46 GMT

Thanks to whichever student group (Federalist Society?) left this tasty bonanza in the student center kitchen. Baked potatoes!

Superlatives

Thu, 15 Mar 2012 17:51:25 GMT

Because law school is really just high school with (mostly) legal drinking, BJESL is asking for nominations for its Annual 3L Superlatives. Only 3Ls are able to nominate, but all JDs are able to vote. The categories include:

Funniest (Female / Male)
Best Body (Female / Male)
Best Looking (Female / Male)
Best Dressed (Female / Male)
Biggest Flirt (Female / Male)
Best Personality (Female / Male)
Biggest Gossip (Female / Male)
Biggest Gunner (Female / Male)
Favorite Couple
Favorite Couple That Never Was
Most Likely to Become a Supreme Court Justice
Most Likely to Become an Ambulance Chaser
Most Likely to Save the World
Most Likely to Host a Daytime Talk Show

Good fun? Bad idea? Other comments? Have at it.

On Invisible Children’s Kony 2012 Campaign

Thu, 15 Mar 2012 12:39:22 GMT

If there was a prize for the NGO who best commodifies white man’s burden on the African continent, and more specifically in Uganda, Invisible Children would win.They recently struck again with a new video and campaign titled “Kony 2012.” I was surprised to see it popping up everywhere on my Facebook feedback yesterday: clearly, their [...]

I think it would be useful for persons unfamiliar with the issues featured in the movie and with the difficulties of poverty porn messaging to read up on some past blogs about Invisible Children before sharing this film. A friend has circulated a list of links providing critique from bright and well-qualified individuals speaking on these issues:

Wronging Rights is headed by two human rights lawyers who, for many years, have been on top of the development and humanitarian aid debate, as well as international justice. A few thoughts on the previous Invisible Children “Abduct Yourself” campaign from their blog:

First, organizations like Invisible Children not only take up resources that could be used to fund more intelligent advocacy, they take up rhetorical space that could be used todevelop more intelligent advocacy. And yeah, this may seem like an absurdly academic point to raise when talking about a problem that is clearly crying out for pragmatic solutions, but, uh, the way we define problems is important. Really, really important. Choosing to simplistically define Congolese women as “The Raped” and Ugandan children as “The Abducted” constrains our ability to think creatively about the problems they face, and work with them to combat these problems.

Second, treating their problems as one-dimensional issues that can be solved by a handful of plucky college students armed only with the strength of their convictions and a video camera doesn’t help anyone. These gets back to something very simple and very smart that Alanna Shaikh wrote a few months ago: “Bad development work is based on the idea that poor people have nothing. Something is better than nothing, right? So anything you give these poor people will be better than what they had before.”

Over on Texas in Africa, the blog has previously hosted two students who have provided some additional thoughts on Invisible Children. The students made a good faith effort to get in contact with Invisible Children and get both sides of the story on their former abduction campaign:

This is a symptom of the larger problem at hand. Not only does IC fail to base its decisions on what Ugandans think is best for them, the organization also make efforts to explain away any dissent. IC has become a brand with machine guns and cameras as its apparent logo and celebrity filmmakers as the protagonists against the evil LRA. The war is no longer about the people versus the LRA; it has transformed itself into something far too sensationalized and, at times, seemingly insincere. Poole, Russell, and Bailey v. Kony.

… And this is why we are as concerned as we are. IC has great potential and opportunity to do good. The organization has successfully motivated masses of young people to be globally and politically active. Advocacy, however, does not end at trendy t-shirts and cool graphics.

While I could reiterate what bad advocacy looks like and why we do not want nor need it, Texas in Africa has provided a thoughtful list of issues to consider as well. There is little I could add to it and I strongly suggest you read the whole post here.

Unmuted has also posted an excellent critique of this new video. An extract:

The dis-empowering and reductive narrative: the Invisible Children narrative on Uganda is one that paints the people as victims, lacking agency, voice, will, or power. It calls upon an external cadre of American students to liberate them by removing the bad guy who is causing their suffering. Well, this is a misrepresentation of the reality on the ground. Fortunately, there are plenty of examples of child and youth advocates who have been fighting to address the very issues at the heart of IC’s work. Want evidence? In addition to the organizations I list above, also look at Art for Children, Friends of Orphans, andChildren Chance International. It doesn’t quiet match the victim narrative, does it? I understand that IC is a US-based organization working to change US policy. But, it doesn’t absolve it from the responsibility of telling a more complete story, one that shows the challenges and trials along side the strength, resilience, and transformational work of affected communities.

Revival of the White savior: if you have watched the Invisible Children video and followed the organization’s work in the past, you will note a certain messianic/savior undertone to it all. “I will do anything I can to stop him,” declares the founder in the video. It’s quite individualistic and reeks of the dated colonial views of Africa and Africans as helpless beings who need to be saved and civilized. Where in that video do you see the agency of Ugandans? Where in that Video do you see Jacob open his eyes wide at the mere possibility of his own strength, as Jennifer Lentfer of How Matters describes here? Can we point out the problem with having one child speak on the desires, dreams, and hopes of a whole nation? I don’t even want to mention the paternalistic tone with which Jacob and Uganda (when did it become part of central Africa by the way?) are described, not excluding the condescending use of subtitles for someone who is clearly speaking English.

Finally, a few words of my own. My impression is that the movie is being used as means for Invisible Children to (i) stay relevant and (ii) raise more funding. Capturing Kony and the focus on international justice is a good excuse. Regardless of this opinion, running campaigns to raise awareness is not necessarily damning in itself (and, indeed, in many cases should be commended). Rather, as all the writers above suggest, the manner in which it is done is very important. A few comments on this new video.

The issue with social media is really highlighted by Invisible Children. The number of “likes” on your Facebook page is not necessarily related to the quality of information you share. Social media allows making anything viral, quickly. People often do not look into the substance of the message, or even watch the video you are sending. Once you become a brand, you can do anything. Invisible Children has successfully become a brand, but is sharing information that is far from nuanced and based on emotional reactions. It fails to paint the full picture. In addition to what Unmutedand others have said, I’d like to add the following thoughts:

My main concern is that Gulu – and Uganda - has gone through some incredible changes. The economy is booming. The region is re-stabilizing. While Kony’s men continue to kill, rape and slaughter elsewhere, Gulu is not a static, unchanging place. Neither is Uganda, neither is the continent. Portraying a region like Gulu as such, and sending the mass message that the whole continent reflects this, is damaging. It undermines possibilities of investment. It clouds story of entrepreneurship, success and innovation. This goes hand in hand with saying “I work in Africa.” Lumping the continent as one messy area.

When it comes to the ICC indictment of Kony, the film clip fails to consider the difficulties that such an international indictment can have and what alternative effects an offer like amnesty might have had. There have been major debates about the peace versus justice debate (an interesting and recent reflection on this is available here), which not only have an impact on how we conceive of the Kony indictment, but also of the ICC as an institution. When it comes to supporting American troops in Uganda, it fails to consider the wider systemic problems that are likely contributing to a failure to arrest Kony and which have little to do with whether the US sends a few soldiers abroad or not. Surely Invisible Children’s audience is not so simplistic that being presented with these critical questions would kill their messaging? I think Musa Okwonga, writing in the Independent, highlights the tension between the need to draw attention to these issues, while using sophisticated techniques:

I understand the anger and resentment at Invisible Children’s approach, which with its paternalism has unpleasant echoes of colonialism. I will admit to being perturbed by its apparent top-down prescriptiveness, when so much diligent work is already being done at Northern Uganda’s grassroots. On the other hand, I am very happy – relieved, more than anything – that Invisible Children have raised worldwide awareness of this issue. Murderers and torturers tend to prefer anonymity, and if not that then respectability: that way, they can go about their work largely unhindered. For too many years, the subject of this trending topic on Twitter was only something that I heard about in my grandparents’ living room, as relatives and family friends gathered for fruitless and frustrated hours of discussion. Watching the video, though, I was concerned at the simplicity of the approach that Invisible Children seemed to have taken.

The thing is that Joseph Kony has been doing this for a very, very, very long time. He emerged about a quarter of a century, which is about the same time that Uganda’s President Yoweri Museveni came to power. As a result the fates of these two leaders must, I think, be viewed together. Yet, though President Museveni must be integral to any solution to this problem, I didn’t hear him mentioned once in the 30-minute video. I thought that this was a crucial omission. Invisible Children asked viewers to seek the engagement of American policymakers and celebrities, but – and this is a major red flag – it didn’t introduce them to the many Northern Ugandans already doing fantastic work both in their local communities and in the diaspora. It didn’t ask its viewers to seek diplomatic pressure on President Museveni’s administration.

About ten minutes into the video, the narrator asks his young son who “the bad guy” in Uganda is; when his young son hesitates, he informs him that Joseph Kony is the bad guy. In a sense, he let Kony off lightly: he is a monster. But what the narrator also failed to do was mention to his son that when a bad guy like Kony is running riot for years on end, raping and slashing and seizing and shooting, then there is most likely another host of bad guys out there letting him get on with it. He probably should have told him that, too.

There is another aspect about this particular video and campaign that I, and others, find disturbing. Invisible Children says it will be targeting “culture makers.” Not one of these individuals have significant, vested interests in the African continent (let alone Uganda). Not one person is from Uganda or the wider region. Encouraging a diversity of voices, and providing a platform for new African leaders – whether political, economic, or social – would help highlight that the continent is not just Kony, war and rape and would provide a valuable, wider messaging. The bottom line with poverty porn messaging is that it paints leaders who are struggling in their communities to tackle these problems as hopeless and useless. Keep the American “culture makers,” but why not also provide Ugandan leaders with a platform from which to speak?

In closing, I think the ‘we must start somewhere’ and the ‘better than nothing’ arguments are really tricky. The thing with Invisible Children is that they are not just starting from nowhere and they aren’t just doing nothing. They affect a huge contingent of people around the world. Through extensive fundraising, they have incredible resources. They have a strong foundation and could present a more nuanced and respectful campaign if they wanted to. With that said, I guess I think it is a shame that, after all this time and with their experience, they (i) believe their listeners do not want more answers to the complicated questions and (ii) that they have not considered including and uplifting leaders from the communities which they talk about who could provide a more honest and in-depth picture.

Regardless, I’d like to thank Invisible Children for giving us yet another opportunity to discuss how destructive bad advocacy can be. Here’s an opportunity to challenge ourselves, particularly those who work in development and aid communication, to try and collectively brainstorm how we can generate important stories and campaigns, while sending messages that are empowering, accurate and thought-provoking. It is also an opportunity for each of us to personally dig a bit deeper into the challenge of Kony and the LRA and become more familiar with these issues in a respectful way.

My first suggestion would be to start listening and engaging with the following individuals:

For more see Siena’s personal site.

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