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Editorial Questions Whether New York's Lawyer Advertising Rules Protect Consumers

Attorney_adsOn Tuesday, an interesting editorial was published in The Post-Standard regarding New York's lawyer advertising rules, which became effective last February.  The editorial discussed the new rules in the context of the lawsuit challenging the rules that is currently pending in federal court in the Northern District of New York.

The gist of the editorial was that the recently enacted rules do not necessarily serve their intended purpose of protecting legal consumers from "misleading" information.  The editorial also questioned whether consumers actually need more protection than had been provided under the previously existing rules that regulated attorney advertising.

From the article:

It is curious that the state feels the need to protect consumers from lawyers, but not from businesses like pharmaceutical firms. The drug companies' "Ask Your Doctor" ads effectively encourage consumers to distrust their doctors' ability to prescribe the appropriate medication and instead be guided by the pharmaceutical giants. Yet there has been no great effort to regulate that industry...

Shouldn't consumers decide whether they think the "heavy hitters" are indeed heavy hitters unless, of course, the state can prove the firm is engaging in fraudulent practices? Even if it is, the state's existing rules should be sufficient to go after the firm....

Judge Scullin himself seemed to express some reservations about the rules, pointing out that the U.S. Supreme Court has supported lawyers' First Amendment rights. He also wondered whether the state's previous standards were sufficient to regulate law firms. Public Interest and Alexander and Catalano, which has stopped using the "heavy hitter" phase, support the old rules...

The author raises some good points.  However, only time will tell if Judge Scullin truly believes that the new rules go too far.

Surprising Statistics About Juries

Black_man_jailTwo articles about juries recently caught my eye.

The first is a Reuters article that discusses a recent finding that Caucasians predominate on Manhattan jury pools.  Here are some startling statistics from the article:

Only about half of Manhattan's population is white, but three in four people who appear for jury duty are white, the report said.

Hispanics, who make up 27 percent of the overall population, are the most under-represented group in jury pools, accounting for about one in 16 people, it said.

Blacks make up 17 percent of the population, but just one in 10 appears in the pool, while Asians -- 10 percent of the population -- appear at a rate of one in 16.

Members of Citizen Action observed and recorded the race of 14,429 people who appeared in Manhattan juror assembly rooms from November 2006 through February this year.

The New York Personal Injury blog has posted a link to the full report and to a press release regarding the study here.

The prevalence of whites on juries is particularly striking when contrasted with the following data obtained via this Columbia Journalism News article that I found after a quick Google search: 

Although African Americans are only 15 percent of the population under 18, they constituted 26 percent of the juvenile arrests in 1998. Arrested African Americans are more likely to be formally processed, sent to adult court, and sent to a juvenile or adult detention or correctional facility.

In addition, the average prison stay for an African-American or Latino juvenile was longer than a white youth’s stay by an average of 86 days. A variety of self-reporting data shows that white and minority children commit crimes at similar rates, according to a report by Vincent Schiraldi, the director of the Justice Policy Institute.

While those statistics are limited to the juvenile population, as anyone who has recently entered a criminal courtroom can attest, African American and Hispanic defendants far outnumber Caucasians amongst the adult population as well.

Not surprisingly, this study confirms what most criminal defense practitioners could have already told you--the vast majority of defendants rarely encounter a jury of their "peers."

Another potential failing of juries that is of even greater importance is discussed in this AFP article which summarizes a troubling study from Northwestern University.  The study concludes that juries and judges are wrong 1/6 of the time. 

From the article:

So much for US justice: juries get the verdict wrong in one out of six criminal cases and judges don't do much better, a new study has found.

And when they make those mistakes, both judges and juries are far more likely to send an innocent person to jail than to let a guilty person go free, according to an upcoming study out of Northwestern University...

The study, which looked at 290 non-capital criminal cases in four major cities from 2000 to 2001, is the first to examine the accuracy of modern juries and judges in the United States.

It found that judges were mistaken in their verdicts in 12 percent of the cases while juries were wrong 17 percent of the time.

More troubling was that juries sent 25 percent of innocent people to jail while the innocent had a 37 percent chance of being wrongfully convicted by a judge.

Assuming that the findings are correct, the results of the study are disturbing. 

That's a big assumption, however, since the method used to determine whether mistakes were made in a given trial is a bit questionable, in my humble opinion:

Spencer's study does not examine why the mistakes were made or which cases ought to be overturned.

Instead, he determined the probability that a mistake was made by looking at how often judges disagreed with the jury's verdict.

"If they disagree they can't both be right," he explained.

Spencer found an agreement rate of just 77 percent, which means a lot of mistakes were being made.

Nevertheless, if the rate of error is even remotely close to 1 out of 6 cases, then as far as I'm concerned-- Houston, we've got a problem.

Define That Term #225

DictionarySunday's term was gravamen, which is defined as:

n. Latin for "to weigh down," the basic gist of every claim (cause of action) or charge in a complaint filed to begin a lawsuit. Example: in an accident case, the gravamen may be the negligence of the defendant, and in a contract case, it may be the breach of the defendant.

Both Edward Wiest and Eye got it right!

Today's term is:

overt act.

As always, no dictionaries, please.

The New York Legal News Round Up

Latest_newsHere are a few interesting New York law-related headlines from the past week:

The Pendulum Swings Madly

Drlogo11This week's Legal Currents column, which is published in The Daily Record, is entitled "The Pendulum Swings Madly"  The article is set forth in full below, and a pdf of the article can be found here.

My prior articles can be accessed here.

The Pendulum Swings Madly

At issue in Bowles v. Russell, No. 06-5306, a decision recently handed down by the U.S. Supreme Court, was whether the time limits for filing an appeal were jurisdictional and, thus, could not be waived no matter what the reason for the lapse in timely filing an appeal.

At first glance, this decision seems fairly routine, but there is far more to this case than meets the eye. Lurking just below the surface is a fascinating study of the ebb and flow of constitutional jurisprudence. But, inquisitive constitutional scholars beware: The pendulum of justice can sometimes swing suddenly and quickly, so be prepared to duck.

In Bowles, the imprisoned petitioner filed a federal habeas corpus application, which was denied by the District Court. He subsequently failed to appeal the denial within the 30 days allowed by federal statute and, therefore, moved for an extension of time in which to file his notice of appeal. His motion was granted, but the District Court judge’s order inexplicably allowed 17 days in which to file his notice of appeal rather than the statute’s mandated 14 days. Bowles filed his notice of appeal within the order’s time period, but outside of the timeframe allowed for by statute.

The Court of Appeals concluded that because the notice of appeal was untimely filed, it lacked jurisdiction to hear the case. The Supreme Court then granted certiorari.

Not surprisingly and in keeping with the oft-repeated pattern established this term, the majority and the dissent were sharply divided along familiar lines regarding this seemingly mundane procedural issue.

The majority opinion, authored by Justice Clarence Thomas, affirmed the lower court’s decision. The majority declined to apply the “unique circumstances” doctrine, a rule established in 1962 that allowed the court to make exceptions to jurisdictional rules in certain situations, such as when excusable error by an attorney had occurred. In doing so, the court expressly overruled two Supreme Court precedents and held that the time limits for filing a notice of appeal were jurisdictional and, therefore, could not be waived for any reason.

The dissent, written by Justice David Souter and joined by Justices Ruth Bader Ginsberg, Stephen Breyer and John Paul Stevens, asserted that the time limits in this case were not jurisdictional and that the majority ignored the fact that, in recent years, the court narrowed the definition of “jurisdiction,” an inherently ambiguous term.

Justice Souter then chastised the majority for their alleged hypocrisy: “In ruling that Bowles cannot depend on the word of a District Court Judge, the Court demonstrates that no one may depend on the recent, repeated and unanimous statements of all participating Justices of this Court. Yet, more incongruously, all of these pronouncements by the Court, along with two of our cases, are jettisoned in a ruling for which the leading justification is stare decisis.

“My initial inclination as a criminal defense attorney was to side with the dissent, since to deny a prisoner the opportunity to challenge his conviction due to the error of a District Court judge offended my basic sensibilities.”

Justice Souter’s lofty and convincing language in the dissent served only to further convince me that a great injustice occurred in this case.

That was until I read the first footnote of the dissent, FN1, which states: “The court thinks my fellow dissenters and I are forgetful of an opinion I wrote and the others joined in 2003, which referred to the 30-day rule of 28 U.S.C. § 2107(a) as a jurisdictional time limit. See ante, at — 5 (quoting Barnhart v. Peabody Coal Co., 537 U.S. 149, 160, n. 6, 123 S.Ct. 748, 154 L.Ed.2d 653 (2003)). But that reference in Barnhart was a perfect example of the confusion of the mandatory and the jurisdictional that the entire Court has spent the past fouryears repudiating in Arbaugh, Eberhart, and Kontrick. My fellow dissenters and I believe that the Court was right to correct its course; the majority, however, will not even admit that we deliberately changed course, let alone explain why it is now changing course again.”

After reading this footnote, it suddenly occurred to me that a helmet of some sort might be in order when tackling this issue, since it would seem that this particular pendulum has been swinging back and forth with glee since the early 1960s, with no end in sight.

Quite frankly, I’m not sure which side is technically correct. Equity would seem to side with Bowles, while the latest Supreme Court precedent comes down squarely against him.

I’m not sure if we’ll ever know the answer to the question of whether time limitations are jurisdictional. But rest assured, I can comfortably predict with utmost confidence that we’ll always have an answer, since the pendulum will continue to swing wildly to and fro. Of that I have no doubt.

And, for your viewing entertainment, a video about the balance of the Supreme Court and the importance of the 2008 elections:

The New York Blawg Round Up

BlawgsIt's Monday and time for the weekly round up of interesting posts from my fellow New York legal bloggers:

Indignant Indigent:

Mental Disability Law Blog:

New York Attorney Malpractice Blog:

New York Legal Update:

New York Personal Injury Law Blog:

No-Fault Paradise:

Simple Justice:

No More Movie Theaters For Me

Cooper v Carmike Cinemas, Inc. 2007 NY Slip Op 05028, is a case that has cemented my love for Netflix.  In Cooper, the plaintiff was injured when he stepped on a nail while a patron at the defendant's movie theater.  As a result of the injury, his foot became infected and had to be amputated

See what I mean? Netflix, all the way, baby!

But I digress--and then some.

The Fourth Department held, correctly, in my opinion, that the trial court inproperly denied the defendant's motion for summary judgment on the grounds that the plaintiff could proceed on the theory of res ipsa loquitur.  The Court concluded that res ipsa loquitur was inapplicable since the record failed to establish that the nail that caused his injury was within the exclusive control of the defendant.

However, the Court held that the defendant's motion for summary judgment was properly denied on another basis:

Defendant failed to meet its burden of establishing as a matter of law that it did not create the dangerous condition...nor did it establish that it lacked actual or constructive notice of the dangerous condition...We note in particular with respect to notice that, in support of its motion, defendant submitted the deposition testimony of several of its former employees, none of whom had any personal recollection of the manner in which defendant's theaters were cleaned or the frequency of the cleaning at or near the time of the incident. ...Defendant submitted no evidence that the theater had been cleaned and inspected during a period of time that was close to the time of plaintiff's injury. Thus, "defendant failed to establish that the [nail] had not been on the floor for a sufficient length of time to permit an employee to discover and remedy the condition"...

I bet the defense would have been granted summary judgment in a heartbeat if the motion had included affidavits from employees with personal knowledge rather than relying on deposition testimony.  Sometimes it seems like it might save time and be a lot easier to rely on excerpts from depositions, but in my experience it generally creates more work down the road than if you'd spent a little time up front to get the information that you need in affidavits that you've prepared.

Occasionally you can find snippets of testimony from deposition transcripts that support your motion, but it's rare to find exactly what you require.  Obviously, you can use deposition testimony from witnesses for your opponent, since you won't be able to obtain affidavits from them unless of course opposing counsel provides them in support of their response, although those affidavits are generally not helpful for your position).

But, when it comes to agents of your client, your best bet is almost always to obtain affidavits and utilize the deposition transcripts as further evidence of the point that you're trying to make.

Another issue that arises when using deposition transcripts to support you motion is whether to attach the relevant excerpts of the transcripts or to attach the transcripts in their entirety.

There are two camps on this.  I've heard judges complain that lengthy motions with hundreds of pages of transcripts attached as exhibits is pointless and serves no purpose other than contributing to the demise of many poor trees.

I happen to be in the other camp, since I've found myself in the unenviable position of attempting to draft an interlocutory civil appeal on another attorney's file when only excerpts were included.  Let me assure you that it's extremely frustrating when the testimony that would really help your position on appeal is found on page 28 of the transcript, but only pages 23-27 were attached to the motion and thus are part of the record on appeal.

But, once again, I digress.

Back to my original point.  No more movie theaters for me.  In fact, I don't think I'll be leaving my house anytime soon.  It's a jungle out there.

Define That Term #224

Dictionary Thursday's term was jury stress, which is defined as:

n. a form of mental, emotional, psychological, physical and sexual tension found to affect juries in long trials due to exhaustion, sequestration, the mountain of evidence and the desire to do the right thing. See also: jury.

No one guessed.

Today's term is:


As always, no dictionaries, please.


Is Collection of DNA From Probationers Convicted of Non-violent Federal Crimes Constitutional?

You may recall that one of my recent Legal Currents articles for the  Daily Record focused on Gov. Spitzer's proposal to broaden the DNA database.  The article was entitled "Distracted by bright and shiny objects?" and can be found here.

I recently received an email from a regular reader who informed me of a decision by the United States Court of Appeals for the 2d Circuit in US v. Amerson,  Docket Nos. 05-1423-cr; 05-1063-cr, in which the Court concluded that the collection of DNA from probationers convicted of non-violent federal crimes pursuant to the DNA Analysis Backlog Elimination Act 10 of 2000 (“the 2000 DNA Act”), Pub. L. No. 106-546, 114 Stat. 2726 (2000) does not violate the probationers' 4th Amendment right to be free of unreasonable searches and seizures.

The decision, in its entirety, can be found here.

In upholding the DNA collection, the Court relied on the "special needs" exception to the Fourth Amendment, a doctrine which I have examined in the past here and here:

This Court and the Seventh Circuit, on the other hand, have applied the “special9 needs” test to uphold the constitutionality of earlier DNA indexing laws...

(W)e (will) analyze the constitutionality of the 2004 DNA Act as it applies to 16 Appellants under the two-prong special-needs approach. First, in Part I, we consider whether thesearch and seizure is justified by a special need beyond the ordinary needs of normal law enforcement. Concluding that under Nicholas it is, we examine in Part II whether the search was reasonable in light of that special need. We do so by weighing the government’s interest against the intrusion on the Appellants’ privacy interests...

While we do not hold that a probationer has no expectation of privacy in his or her identity,we agree that, like all convicted felons, a probationer’s expectation of privacy in his or her identity is severely diminished...As a result, we conclude that for probationers, as for 4 the incarcerated felons in Nicholas, “[g]iven that the state likely already has a plethora of identifying 5 information about [them], in light of their status as convicted felons,” id., the additional intrusion 6 of privacy entailed by the taking of the DNA sample is small...

(T)he government’s interest in getting appellants’ DNA 5 samples is not much attenuated by the fact that appellants are non-violent felons.  And appellants’ expectation of privacy (as probationers) is no less diminished than that of other categories of probationers. Nor is the degree of intrusion any greater for appellants than for others as to whom DNA testing has been upheld. Under the circumstances, the reasonableness balance can only come  out one way...

Taking and storing samples of DNA under the restrictions of the DNA Act fulfills many  important governmental interests, only some of which are limited to the criminal history of the  subjects of the DNA testing. The invasion of privacy, both immediate, and long term, from DNA testing of convicted felons—even those convicted of non-violent crimes and sentenced only to probation—is, given the safeguards of the 2004 DNA Act, relatively small. Accordingly we conclude that the 2004 DNA Act, as applied to appellants, does not constitute an unreasonable search or seizure and hence does not violate the Fourth Amendment.

Needless to say, I disagree with the Court's conclusion.  As in the cases relying upon the special needs doctrine that I'd discussed in the past, the special needs doctrine should be inapplicable in this case since it is obvious that the primary purpose of collecting DNA is law enforcement--a recognized exception to the special needs doctrine.

The defendants/appellants disagreed with the Court's decision as well, and as such will be filing a petition for certiorari with the United States Supreme Court in July.

I'll keep you advised as to any developments in this case.

Define That Term #223

Sunday's term was save harmless, which is defined as:

v. 1) also called hold harmless, to indemnify (protect) another from harm or cost. 2) to agree to guarantee that any debt, lawsuit or claim which may arise as a result of a contract or contract performance will be paid or taken care of by the party making the guarantee. Example: the seller of a business agrees to "save harmless" the buyer from any unknown debts of the business. See also: hold harmless indemnify.

I received the following guess via email from Jonathan:  Save harmless is another way of saying "hold harmless" or "indemnify".

He got it right!

Today's term is:

jury stress.

As always, no dictionaries.