Judge Posner Cogitates On "The Media"

Thirty years ago the average number of television channels that Americans could receive was seven; today, with the rise of cable and satellite television, it is 71. Thirty years ago there was no Internet, therefore no Web, hence no online newspapers and magazines, no blogs. The public's consumption of news and opinion used to be like sucking on a straw; now it's like being sprayed by a fire hose.

Bow to my mighty fire hose, dearest reader!

So why do people consume news and opinion? In part it is to learn of facts that bear directly and immediately on their lives - hence the greater attention paid to local than to national and international news. They also want to be entertained, and they find scandals, violence, crime, the foibles of celebrities and the antics of the powerful all mightily entertaining.

Two words: Hell yeah! Thanks, Judge Posner! Vast quantities of details here from the New York Times.

Attorney Tony Serra Sentenced to Prison

Renowned attorney J. Tony Serra, convicted of his third federal tax violation in 21 years, was sentenced to 10 months in federal prison today by a magistrate who praised his devotion to justice but said no one is above the law.

At a two-hour hearing in which a parade of Bay Area legal luminaries pleaded for leniency, U.S. Magistrate Joseph Spero agreed that Serra was a rarity -- a lawyer who has spent his life representing the downtrodden, usually for free -- but also noted that he hadn?t complied with the federal income tax laws for at least two decades.

"You're not an exception to the rule of law," Spero said. With a federal prosecutor's agreement, he allowed Serra to remain free until Jan. 30 to accommodate his trial schedule, and recommended confinement at the minimum-security federal prison camp in Lompoc.

He ordered Serra to pay $100,000 in restitution to the government after his release. The prison term was the minimum recommended by federal sentencing guidelines.

A friend of mine once attended a criminal defense conference at which Serra spoke while wearing a t-shirt that said "Fuck The Police." Details of Mr. Serra's sentencing are here from the San Francisco Chronicle.

Judge Orders Man to Get Job to Pay for Victim's Funeral

GREENSBURG, Pa. (AP) � A judge has ordered a man to get a job so he can reimburse a family for the costs of the funeral of a woman who died when he struck her car while driving drunk.

Westmoreland County Judge Richard McCormick Jr. on Friday found Dale G. Grubbs, 41, of Irwin, to be in contempt of court for failing to pay $10,160 in court costs, fines and restitution.

Most of the money � $8,120 � would go to the family of Delores Heminger to cover the costs of her funeral. Heminger, 40, of Jeannette, died in July 1994 when her car was struck by Grubbs' car on a Hempfield Township road.

Details here from the AP via PennLive.com.

"How Easy It Is To Be a Murderer in California"

I've been going through my blogroll (under "MORE BLAWGS" on the right) to check for blogs that have disappeared or stopped being updated. I'm pleased to say that all of the law bloggers I have listed are still active.¹

While going through the list, I checked on Public Defender Dude and found this interesting post about the law of murder in California. Nice work, Dude!

¹ Though Rufus is threatening to abandon us.

Federal Judge Says Patriot Act Too Vague

LOS ANGELES -- A federal judge has ruled that some provisions of the U.S. Patriot Act dealing with foreign terrorist organizations remain too vague to be understood by a person of average intelligence and are therefore unconstitutional.

U.S. District Judge Audrey Collins found that Congress failed to remedy all the problems she defined in a 2004 ruling that struck down key provisions of the act. Her decision was handed down Thursday and released Friday.

"Even as amended, the statute fails to identify the prohibited conduct in a manner that persons of ordinary intelligence can reasonably understand," the ruling said.

Collins issued an injunction against enforcement of the sections she found vague but specified that her ruling applies only to the named plaintiffs and does not constitute a nationwide injunction.

Details here from the AP via The Washington Post.

Presiding Justice Laurence D. Kay to Retire From First District Court of Appeal Next Month

Presiding Justice Laurence D. Kay of the First District Court of Appeal [in San Francisco] will retire Aug. 31, the MetNews has learned.

The retirement of Kay, 68, will cap a 24-year judicial career, which began with a San Francisco Municipal Court appointment by then-Gov. Jerry Brown in August 1981. Brown elevated Kay to the San Francisco Superior Court just prior to leaving office in January 1983.

Then-Gov. Gray Davis appointed Kay to the Court of Appeal in 2001. He was elevated to presiding justice the following year, succeeding Daniel Hanlon.

Details here from the Metropolitan News-Enterprise.

High-Lows' Ups and Downs

Deals Taking Risks Out of Verdicts Are Popular, But Some Lawyers Avoid Them

It doesn't take long in talking to B. Casey Yim to realize that the veteran Los Angeles trial lawyer has little patience for colleagues who, he says, lack faith in the jury system.

So when opposing counsel approach him with 11th-hour offers to curb the risk of an unexpected high or low award, Yim tells them he would rather pass.

High-low agreements, which set upper and lower award limits that the parties will accept, "take away that negotiating chip from the defense and give the plaintiff a free spin at the wheel of fortune," Yim says.

But Yim's aversion to high-low agreements may be a minority view these days. Although it is difficult to track how frequently they are used, trial lawyers nevertheless report that high-lows are on the rise. Some experts go so far as to argue that revealing their use more often would improve the public's image of lawyers, making plaintiffs lawyers seem less greedy and defense lawyers more reasonable.

"I think they�re becoming more in vogue," says Chicago trial lawyer Mark E. McNabola, who has used high-low agreements for nearly 20 years.

Details here from the ABA Journal.

An Online Artist Challenges Obscenity Law

In a landmark 1973 case, the United States Supreme Court defined obscenity in part as anything that ''the average person, applying contemporary community standards'' would find appealing only to prurient interests. But with the growth of the Internet, a difficult question has arisen: Which community's standards apply in cyberspace?

On Monday in a case brought against the government by a New York photographer, a panel of federal judges in Manhattan declined to answer that question, but the lawsuit could end up providing the Supreme Court with a chance to address the issue.

Details here from the New York Times via LexisONE.com.

Attorney's License Suspended for Asking Client to Pose Nude

POCATELLO, Idaho -- It was just after Pocatello attorney Curtis Holmes finished his opening argument in a child sex abuse case that the trial judge learned Holmes had lost his lawyer's license.

The Idaho State Bar suspended Holmes' law license this week for eleven months. An investigation determined he asked a female client to pose for nude photographs in exchange for his fee for her divorce.

Sixth District Judge Ron Bush declared a mistrial yesterday in the case against Holme's client, Joseph Turner, who is charged with lewd conduct. No new trial date has been set.

It never occurred to me to try this in my own practice. But given that my clients were giant corporations, I don't think "nude" photos of them would have been particularly valuable. Details here from the AP via kbciTV.com. (via fark.com)

Firm Accused of Copying Multistate Bar Examination Test Questions

This is timely, as the Multistate Bar Examination was administered in California today:

In a suit that could have national implications for how law students prepare for the bar exam, the National Conference of Bar Examiners has accused a California company of illegally copying questions from the Multistate Bar Examination for use in bar exam preparation courses.

In the suit, NCBE claims that employees of Multistate Legal Studies Inc. have attended bar exams in several states for the sole purpose of copying questions to be used in its prep courses.

In response to the suit, lawyers for MLSI contend that the similarities between the questions in their prep courses and those on the MBE stem from the fact that both are drawn from the same pool of material -- hornbooks, law treatises and case law -- and that such similarity is entirely permissible.

But in a motion for summary judgment, NCBE says that while it concedes some similarity is acceptable, MLSI's materials are sometimes strikingly similar to actual MBE questions.

Since the pool of material is so large, NCBE argues that "something more than coincidence" must explain how both the MBE and MLSI's prep course feature questions based on the same 1908 Vermont Supreme Court case.

MLSI provides bar review clases under the name "PMBR." Details here from The Legal Intelligencer via Law.com.

Calif. Supreme Court to Review Dog Maul Conviction

SAN FRANCISCO (AP) -- The California Supreme Court agreed Wednesday to review the murder conviction of a San Francisco attorney whose dogs fatally mauled a neighbor in an apartment building hallway.

The court unanimously agreed to review an appeals court ruling that reinstated Marjorie Knoller's second-degree murder conviction. A Superior Court judge had tossed out the jury's murder verdict and reduced the conviction to manslaughter.

The appeals court, in reinstating the murder conviction, said Judge James Warren wrongly concluded that in order for Knoller to be convicted of murder, she had to have known that one of the two giant Presa Canario dogs would kill.

The appeals court sent the case sent back to Warren to review the decision under a different standard: that Knoller disregarded a known risk that the dogs presented, including the viciousness of Bane, the male dog mostly responsible for 33-year-old Diane Whipple's death in 2001.

Details here from the AP via the New York Times.

Controversy Dogs Terror Tribunals

Long-stalled military trials of terror suspects at Guant�namo Bay may soon restart, but debate over their fairness remains as intense as ever.

To Pentagon officials, the planned US approach is at least as fair as the international tribunals in Rwanda and Yugoslavia. In those proceedings, prosecutors can appeal not-guilty verdicts, for instance. That won't be possible in the US process.

But critics complain that the US tribunals can keep evidence secret from the accused - something that would never be tolerated in the domestic justice system. And revelations about US prisoner abuse have caused some to question the military's overall handling of detainees, including their plans for prosecutions.

Details here from The Christian Science Monitor.

Lawyer Disbarred After Telling Client Fish Story About Unfiled Case

A lawyer who told a client he had won a $1.1 million medical malpractice settlement -- when, in fact, no suit had been filed -- paid a heavy price for the deception on July 19: loss of license.

The New Jersey Supreme Court ordered the immediate disbarment of Philip Morell, despite the Disciplinary Review Board's suggestion of a two-year suspension.

"The present case is a clear case of dishonesty, fraud and deceit," the court held, 7-0, in In the Matter of Philip Morell, D-23-04. "The undisputed evidence demonstrates that respondent continually fabricated a story to his client to make it appear that the client's interests were protected and that the client would receive a substantial recovery."

Details here from the New Jersey Law Journal via Law.com.

Former Associate Sues Orrick Over Partnership Promise

A former senior associate at Orrick, Herrington & Sutcliffe has sued the firm for fraud and breach of contract, charging he was promised but then denied promotion to the partnership.

In a suit filed Friday in Manhattan Supreme Court, Patrick J. Hoeffner, a former associate in San Francisco-based Orrick's New York intellectual property practice, claims partners William Anthony, Robert Isackson and Robert Cote promised in 2002 to make him a partner because they feared he would leave the firm and take a client, Conductus, Inc., with him.

"Driven by greed to obtain the millions of dollars in revenue from the Conductus litigation, Defendants engaged in a scheme to keep Plaintiff and the Conductus litigation at Orrick," the suit charges. The scheme allegedly centered on a contract promising Hoeffner a review for partnership in 2004, with oral assurances that the review would be a "rubber stamp."

But instead of being promoted at Orrick, he was asked to leave the firm at the end of last year.

Hoeffner, a 1996 graduate of St. John's University School of Law, is now seeking more than $100 million in damages. Along with the firm, Anthony, Isackson and Cote are all named as individual defendants, as is John MacKerron, then head of Orrick's New York office.

Details here from the New York Law Journal via Law.com.

Women Pushing Car Charged With DUI

PORTAGE, Ind. -- Two women who took turns steering a broken-down vehicle face drunk driving charges after their slow-moving car crashed into a parked car.

Kaylyn Kezy, 34, of Gary, was pushing the disabled car, while Melissa Fredenburg, 32, of Chesterton, steered from the passenger seat, police said. The two were moving the car into a parking lot at a nearby motel early Friday in the city about 10 miles east of Gary.

Police said both women had a blood-alcohol levels of 0.17 percent, more than twice the state's legal limit to drive.

Authorities said the women were operating the vehicle while intoxicated -- even though the car's engine wasn't working. A prosecutor acknowledged the charges could be difficult to prosecute in court.

Details here from the AP via the Washington Post.