LawTalkers - Know new taxes!

Good post. Definitely there will be experts but I wonder what will happen if defense counsel pushes too hard on some topics. And also if jurors ask to see the car themselves. In State v. Lisa Greene (N.C. Mom burned her house down to kill kids), jurors asked for the clothes kids were wearing when they burned. In another North Carolina case (State v. Petersen), the judge allowed the jury to see (when they asked for it) the bloody sweatpants of a victim (killed by her husband) even though blood decomposes and smells rotten just like a full body. In this case, defense has already retained "expert" Henry Lee who is now all over TV saying how the smell in the car could have come from a mix of dirty car contents, pizza and rotting sandwich meat. Which is total bullshit. There's also a new push to get "potential sightings" of this poor (dead) girl published all over the place so jurors think, "Maybe she's still alive." They had better find that body.

Thanks. In my experience, judges would allow juries to see whatever evidence they believe would withstand a 352 (or its federal analogue) objection for prejudice outweighing probative value on appeal. You'd be amazed at what jurors will do. In one case, an alternate wanted questions asked of witnesses. In some states, jurors can submit questions to the judge that they want witnesses to answer. In this case the alternate's questions clearly showed that em had done research on the case. It was all irrelevant (but potentially juicy) stuff, so none of the questions were asked.

From one of the news reports, this woman is a hard one, so it will take a lot of police work (and more likely some luck) to find that body.

Jack Manfred

11-26-2008 02:53 AM

Re: Any criminal lawyers on here?

Quote:

Originally Posted by ThurgreedMarshall (Post 372443)

Question (for everyone, not just Sebby): I generally tend to assume that people exaggerate how much they dislike jury duty and how willing they are to lie or pull some stunt to get out of it. But I'm curious. Do people really think it's that bad? Aside from sitting in the jury pool and not getting picked, performing my civic duty and participating in the justice system has been interesting every time I've had the opportunity.

I suppose it isn't as much for litigators, but as someone who has (or had) chosen the law as a profession, why do you see serving on a jury as such an awful thing?

TM

I've been a part of this discussion on other boards and with people IRL, and there's a significant minority of people (as reflected in some of the responses to this post) that HATE jury duty, have no qualms about not showing up, and have no problem telling the judge whatever they think will get them off a particular jury even if it's racially inflammatory.

The whole concept of civic responsibility doesn't seem to hold much water nowadays. Maybe more young people need to be Boy Scouts and Girl Scouts. (I assume they taught civics and citizenship in Girl Scouts.)

Obviously, serving on a jury can be a financial hardship for those who don't get reimbursed by their employer. And I would stand in front of a supermarket collecting signatures for an initiative that required all California employers to reimburse their employees for jury duty. But on the quickest trials, where the judge told people they'd be out of here by the NEXT DAY, there were still people trying to weasel out of serving on a trial when if they thought about it, they should try to get on my panel instead of getting sent back to the jury room only to be called in on some four-week homicide or six-week civil matter.

I've had people parrot other prospective juror's responses when someone was excused for cause. Other colleagues have had people taint entire jury pools with insenstive comments. Some people just do not feel that they have any responsibility outside themselves.

Personally, I've always wanted to be on a jury. I've never even gotten in the box, though I've been called down a couples times before law school. I've had lawyers on juries, and at least one was the foreperson. I can't remember if I got the verdict on that one or not. I do agree that a lawyer that isn't kicked from a panel will likely be made the foreperson on any jury. Every trial lawyer has a set of "rules" that they think will carry the day. Some prosecutors hate teachers. Others love teachers. Same with preachers and priests. I love voir dire, though I'm far from expert. I've had some success with it, and I do believe that picking the right jury for your case is vital, especially in tough cases. But I think "rules" have to be considered as part of the whole situation - sort of like poker. Yes, usually this person would be bluffing, but in this particular situation, I think em has a hand because of their body language. I put someone on a jury who didn't have open body language towards me because I just KNEW she would convict. She wound up as the foreperson and wrangled the lone holdout to convict. I'm not saying I possess any Keanu-like powers, but as you do it more, you pick up on more. I've also followed rules right into the ground and gotten jurors who wound up being (a) hostile, and (b) the foreperson.

Other, better stories would be potentially outable, so I'll end this post by saying when I was back in BIGLAW, one of our trials out of downtown LA had TWO lawyers on the jury. It's downtown LA, you have to take what you can get.

Jack Manfred

11-26-2008 03:09 AM

Re: Any criminal lawyers on here?

Quote:

Originally Posted by Hank Chinaski (Post 372486)

my last one was a murder trial, older man killed girlfriend's daughter, with evidence mostly fibers (hi diane!). I sat in the box knowing I was gone. either the Defense lawyer would think I would explain how 100% sure such evidence is, of Prosecution would fear I'd explain there are flaws in all technolgies.

then D's attorney asked us "If the trial has ended and all you know is what you know now, would you find my guy guilty?" there were some yeses and then she asked me, and I groaned, i mean audibly groaned, what a dumb question, "no, he isn't guilty because prosecutor has the burden etc." she goes "thank you!" NWTF? I'm there to give them the law?

then the Prosecution bounced me. at the time I thought D's attorney dumb, but maybe what she was really doing was forcing P to use a challenge.

I always avoided getting into the burden of proof and reasonable doubt on voir dire. I don't think many attorneys can explain these concepts quickly and understandably to a panel. Plus, it's all in the abstract. There was one defense attorney who treated it like Jeopardy, "Do you know which amendment guarantees a trial by jury?" Crickets could be heard.

That's not to say the prosecutor shouldn't have kicked Hank, but I would have gotten up (as I have several times after defense attorneys played that bush-league shit) and said, "Does everyone here understand that while I have the burden of proof, that I plan to call witnesses and bring you evidence so I can meet that burden? Everyone understands that's why you were called down here today - for an actual trial with actual witnesses and actual evidence." Then I focus on whether the ones looking back at me with blank stares are (a) bored, or (b) don't really understand.

Jack Manfred

11-26-2008 03:26 AM

Re: Any criminal lawyers on here?

Quote:

Originally Posted by sebastian_dangerfield (Post 372528)

Great idea, but a little unrealistic for small to mid-sized clients who don't want to fork over the cash for the exercise.

We ought to have mandatory, immediate mediation - with the client present - in every case. Make both sides put the cards on the table at the gate. A good, experienced mediator can tell the value of a claim fairly early on and scare off opportunists or have the necessary Come to Jesus talk with those raising frivolous defenses.

Another helpful development would be increased specificity in pleadings. You should have to articulate your tort theory in detail in your pleading and amendments to complaints should be granted only under extreme circumstances. Too many litigants just fire off a broad brush complaint and then pick theories as they go. And the rule that experts must stick in testimony to the four corners of their report needs to be hardened. We should not have the process where as plaintiff's counsel I make the language of my expert's report vague enough so that we can change the theory subtly on rebuttal if the other side nails us in their report.

We'd do a lot of good if we could narrow the toolbox lawyers have in discovery and claims to eliminate fishing expeditions for additional claims.

End rambling rant now.

2

As everyone was commenting on criminal law, it felt good to comment on civil law again. I'm a fan of mediation in both civil AND criminal matters. A lot of misdemeanors are just arguments between neighbors that have gotten out of hand. Then I have to spend time I should be spending on real crime on who vandalized whose car? And no, I don't want to hear your five-hour collection of angry answering machine messages between you two. (But something MIGHT be exculpatory, so now I need to (a) listen to it, and (b) make a copy for the defense.) Arrgh.

sebastian_dangerfield

11-26-2008 08:08 AM

Re: Any criminal lawyers on here?

Quote:

Originally Posted by Jack Manfred (Post 372566)

We need a loser pays system with teeth to rid the courts and society of high volume personal injury lawyers who bring shit claims, and kill off all the hack defense guys who'll drag anything to try just so they can bill the fuck out of the case. The only way to do that is to make the process painful and economically risky for the advocates.

And anybody making senseless contract claims for business advantage should get murdered with huge sanctions and the costs his opponent suffered because of his malevolent, selfish behavior.

I have no quibble with business lawyers, but litigation should be "safe, legal and rare." It should not be the business it's become. We've helped to make regular and common something that should be stigmatized and shunned in society, severely so. The legal rulebook should be be a substitute for personal parameters of general decency.

I know... I'm living in a fantasyland.

ThurgreedMarshall

11-26-2008 10:56 AM

Re: Jury Trial Participation

Quote:

Originally Posted by Diane_Keaton (Post 372500)

Oh for chrissakes. I made clear the scope was tort and contract civil....not criminal. Yet you still came back with all this sobby dying-for-access-to justice stuff. You must have your period. I have some volunteer causes that bring tears to my eyes but sitting in a jury room waiting to be picked for a slip and fall case aint one of them and waiting in that room, I'm not feeling particularly civic, heroic, patriotic or whatever. YMMV.

Jesus, you're stupid. I don't know what about "I take it very seriously because people died to give me the right" makes you think I'm weepy, but I sure as hell won't shed any tears over the fact that you're a moron.

TM

Tyrone Slothrop

11-26-2008 11:07 AM

Re: Jury Trial Participation

Quote:

Originally Posted by ThurgreedMarshall (Post 372569)

Are you treating today as a Friday, seeing as tomorrow is Thanksgiving and all?

Hank Chinaski

11-26-2008 11:10 AM

Re: Any criminal lawyers on here?

Quote:

Originally Posted by sebastian_dangerfield (Post 372567)

Michigan has mandatory mediation for all state court claims. I think it goes like this, mediation says P gets $10K. Both parties can take it or not, but if you turn it down, and do not do better at trial, you owe the other side his attorneys fees from that day (assuming he did take it).

I guess it helps, at least on some cases.

We have 1 Federal Judge who has a rule that at close of discovery you will do some mediation. the parties can agree to a complex set up, or go to Wayne County mediation (that is what the state cases in Detroit get).

Once I was against the Angel of Death, one of the best trial IP guys around. In his last trial before he died he hit microsoft for $150,000,000.

Anyway, we couldn't agree on anything, and certainly not how to structure any ADR, so we end up in Wayne county mediation (but w/o the teeth of owing). You get a 3 attorney panel and 20 page brief, then 10 minutes to talk to the panel.

It was useless. each person on the panel gets something like $100 per case. they do maybe twenty a day, but guess what? ain't no way they read 20 20 pages briefs per day.

then AOD talks first, and I'm listening to him, and he is just making shit up. I realize the brief and the facts are not limiting at all. the panel will never know. it was quite liberating. i made up all kinds of shit to counter Angel's fantasies.

point is- it might help on cookie cutter PI claims, but anything at all complex is beyond it.

cheval de frise

11-26-2008 11:22 AM

Re: Any criminal lawyers on here?

Quote:

Originally Posted by Hank Chinaski (Post 372571)

I knew your AOD. He was famous for winging it and pissing people off in the process. He did it at oral arguments, depositions, and even at trial (I remember one sidebar I had with him in particular). He also had the most bizarre selection of ties. In the case I had against him, the judge, while shaking his head in disbelief, said at one point (before the jury came out in the morning): "Mr. AOD, I don't believe I've ever met anyone who has a collection of ties like yours." He was wearing a particularly putrid one that day, but he took it as a compliment (as he had to).

By the way, we won.

CDF

Tyrone Slothrop

11-26-2008 11:28 AM

Re: Know new taxes!

The conservative mind at work, chapter MCCLXVII. Kathryn Jean Lopez, at NRO's The Corner, shares a missive from a fellow traveler about the Palin turkey-pardoning kerfuffle:

Quote:

An e-mail: "My wife and I have never been that fond of turkey, but with this dust-up we went shopping for a Thanksgiving/Christmas turkey and will thoroughly enjoy every bite."

Way to stick it to the Man!

Hank Chinaski

11-26-2008 11:54 AM

Re: Know new taxes!

Quote:

Originally Posted by Tyrone Slothrop (Post 372573)

The conservative mind at work, chapter MCCLXVII. Kathryn Jean Lopez, at NRO's The Corner, shares a missive from a fellow traveler about the Palin turkey-pardoning kerfuffle:

Way to stick it to the Man!

i don't get it. your point is that some person bought a turkey because of the video of turkeys getting killed behind Palin, and how she was made fun of?

Penske_Account

11-26-2008 12:01 PM

Re: Jury Trial Participation

Quote:

Originally Posted by ThurgreedMarshall (Post 372569)

I notice that you did not rebut her accusation of you being on your period.....tacit admission?

Tyrone Slothrop

11-26-2008 12:06 PM

Re: Know new taxes!

Quote:

Originally Posted by Hank Chinaski (Post 372574)

i don't get it. your point is that some person bought a turkey because of the video of turkeys getting killed behind Palin, and how she was made fun of?

That was K-Lo's point. My point, which was implied rather than express, is that conservatives are silly.

eta: Bonus K-Lo! Here she is, on Barack Obama, on November 4, 2007:

Quote:

I think his 15 minutes as a serious contender for the presidency are about up.

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