Wednesday, July 20, 2011

Law School Economics: Ka-Ching!

Law School Economics: Ka-Ching!
The New York Times
uly 16, 2011

WITH apologies to show business, there’s no business like the business of law school.

The basic rules of a market economy — even golden oldies, like a link supply and demand — just don’t apply.

Legal diplomas have such allure that law schools have been able to jack up tuition four times faster than the soaring cost of college. And many law schools have added students to their incoming classes — a step that, for them, means almost pure profits — even during the worst recession in the legal profession’s history.

It is one of the academy’s open secrets: law schools toss off so much cash they are sometimes required to hand over as much as 30 percent of their revenue to universities, to subsidize less profitable fields.

In short, law schools have the power to raise prices and expand in ways that would make any company drool. And when a business has that power, it is apparently difficult to resist.

How difficult? For a sense, take a look at the strange case of New York Law School and its dean, Richard A. Matasar. For more than a decade, Mr. Matasar has been one of the legal academy’s most dogged and scolding critics, and he has repeatedly urged professors and fellow deans to rethink the basics of the law school business model and put the interests of students first.

“What I’ve said to people in giving talks like this in the past is, we should be ashamed of ourselves,” Mr. Matasar said at a 2009 meeting of the Association of American Law Schools. He ended with a challenge: If a law school can’t help its students achieve their goals, “we should shut the damn place down.”

Given his scathing critiques, you might expect that during Mr. Matasar’s 11 years as dean, he has reshaped New York Law School to conform with his reformist agenda. But he hasn’t. Instead, the school seems to be benefitting from many of legal education’s assorted perversities.

N.Y.L.S. is ranked in the bottom third of all law schools in the country, but with tuition and fees now set at $47,800 a year, it charges more than Harvard. It increased the size of the class that arrived in the fall of 2009 by an astounding 30 percent, even as hiring in the legal profession imploded. It reported in the most recent US News & World Report rankings that the median starting salary of its graduates was the same as for those of the best schools in the nation — even though most of its graduates, in fact, find work at less than half that amount.

Mr. Matasar declined to be interviewed for this article, though he agreed to answer questions e-mailed through a public relations representative.

Asked if there was a contradiction between his stand against expanding class sizes and the growth of the student population at N.Y.L.S., Mr. Matasar wrote: “The answer is that we exist in a market. When there is demand for education, we, like other law schools, respond.” ...

Sunday, July 17, 2011

Veteran prosecutors’ rookie mistake, no-nonsense judge lead to Clemens mistrial

Veteran prosecutors’ rookie mistake, no-nonsense judge lead to Clemens mistrial
By Del Quentin Wilber
July 16, 2011

The demise of the perjury trial of Roger Clemens was sown in one of the most routine moments of any prosecution: the playing of a video for jurors.

It actually was the fifth cued up that day, showing Clemens’s testimony before a House committee. While tedious, the clips were an essential part of the Justice Department’s case that the baseball legend had lied to Congress in 2008, when he told lawmakers that he had never taken performance-enhancing drugs.

Within moments of the tape’s rolling, the trial was over, and the prosecutors sat slumped and dejected in their chairs.

A judge had declared a mistrial, ruling that the tape included evidence he had barred from the jury.

The dramatic decision left legal observers wondering how such a high-profile prosecution could end so abruptly, on just the second day of testimony. A review of transcripts and interviews with people knowledgeable about what happened reveals that federal prosecutors did not intentionally introduce barred evidence to the jury. Despite years of experience, two well-respected prosecutors had made a basic mistake and not carefully reviewed the videos they planned to show jurors.

Their error was intensified because it occurred in front of a by-the-book judge who noticed it before defense lawyers could even raise an objection.

“Because of the prosecutors’ excellent reputations, you have to believe it’s a mistake, just a mistake,” said Tom Zeno, a former colleague of the two government lawyers. “What compounds the error here,” he added, “is that the judge runs a very tight ship and had high expectations of the prosecutors.”

The judge in the case is Reggie B. Walton, who will be weighing legal arguments in coming weeks to determine whether to grant prosecutors a retrial. Last week, the judge gave no hint about how he might rule.

First appointed to the D.C. Superior Court by President Ronald Reagan in 1981, Walton was tapped for the federal bench in 2001 by President George W. Bush. Since then, he has earned a reputation for being able to manage complex and high-profile trials.

In 2007, he oversaw the trial of I. Lewis “Scooter” Libby, who was convicted of lying about his role in the leak of an undercover CIA officer's identity. He sentenced Libby to 2 ½ years in prison — a sentence later commuted by Bush.

A former fullback on his college football team, he also isn’t afraid to take action. In 2005, he broke up an assault in Chevy Chase Circle by tackling the assailant...

Thursday, July 14, 2011

Wisconsin justice says court fight led to choking

Wisconsin justice says court fight led to choking
Associated Press

MADISON, Wis. -- A member of the Wisconsin Supreme Court's liberal faction has accused a conservative justice of choking her during an argument in her office earlier this month - a charge he denied.

Supreme Court Justice Ann Walsh Bradley told the Milwaukee Journal Sentinel that Justice David Prosser put her in a chokehold during the dispute. She contacted the newspaper late Saturday after Prosser denied rumors about the altercation.

"The facts are that I was demanding that he get out of my office and he put his hands around my neck in anger in a chokehold," Bradley told the newspaper.

A message could not be left at her home listing, and her former campaign manager did not return a call from The Associated Press.

Wisconsin Public Radio and the Wisconsin Center for Investigative Journalism, quoting anonymous sources, first reported the argument occurred before the Supreme Court's decision earlier this month upholding Republican Gov. Scott Walker's bill eliminating most of public employees' collective bargaining rights. Prosser then released a statement denying the allegations.

"Once there's a proper review of the matter and the facts surrounding it are made clear, the anonymous claim made to the media will be proven false," he said. "Until then I will refrain from further public comment."

Prosser's spokesman Brian Nemoir declined to comment on Bradley's later statement and told The Associated Press that Prosser probably wouldn't either. Other members of the court either did not return messages or declined to comment on the incident.

The argument took place June 13, the day before the court, in a 4-3 decision that included a blistering dissent, ruled that Dane County Circuit Judge Maryann Sumi overstepped her authority when she declared the polarizing union law void. While accounts differ, the justices were apparently discussing the decision and its timing.

Leaders in the Republican-controlled Legislature had pushed for a decision by June 14 because they were working on the state budget, and Walker's proposal depended on expected savings from the law. Along with limiting most public employees' bargaining rights, it requires them to pay 12 percent of their health insurance costs and 5.8 percent of their pension costs.

Tens of thousands of people gathered for weeks at the Capitol to protest the proposal after Walker unveiled in February. Once it passed, opponents began to focus on Prosser's re-election campaign in the hope that by replacing him with a liberal justice, they could get the court to overturn the legislation.

Prosser, who had been expected to walk away with the election, found himself in a tight race with liberal challenger JoAnne Kloppenburg. Initial results showed she had defeated Prosser by about 200 votes, and she declared herself the winner the day after the election. Then a county clerk who once worked for Prosser announced she had failed to report 14,000 votes.

A bitter and nearly month-long recount ended with Prosser's re-election. He defeated Kloppenburg by about 7,000 votes.

The recount ended about three weeks before the Supreme Court issued its opinion in the union case. The Milwaukee Journal Sentinel, quoting an anonymous source, said the argument erupted after Chief Justice Shirley Abrahamson said she didn't know whether the opinion would be released in June. Prosser allegedly questioned Abrahamson's leadership, leading Bradley to defend her.

Prosser and Abrahamson, another of the court's liberal minority, had had problems before. Prosser told the newspaper in March that he had used profanity in a meeting the month before and threatened to destroy Abrahamson.

Bradley sent all the justices an email after that meeting, saying Prosser's behavior was unacceptable. She said later that she considered making a report to law enforcement but decided against it.

The Center for Investigative Journalism reported the altercation between Prosser and Bradley had been brought to the attention of the Wisconsin Judicial Commission, which investigates allegations of misconduct involving judges. The commission's executive director, James Alexander, said he couldn't confirm nor deny an incident was under investigation.

Wednesday, July 13, 2011

Bullyproofing: How to Respond to Bullies in the Legal Profession

Bullyproofing: How to Respond to Bullies in the Legal Profession
by Alison Peryea
De Novo
April 2010

...Motivation: Why Bullies Act the Way
They Do

Some people believe that bullies in the le-
gal practice act the way they do because of
underlying anger-management problems
or personality defects. Indeed, studies have
shown that bullies’ brains actually work
differently than the brains of those who
do not bully: bullies suffer from a kind of
paranoia that constantly causes them to
see provocation from others when it does
not exist. “Bullies come to believe that ag-
gression is the best solution to conflicts,”
wrote Hara Estroff Marano in Psychology
Today. “They also have a strong need to
dominate, and derive satisfaction from
injuring others.”

But there are also practical motivations
for bullying in the practice of law. Our
adversarial system incentivizes aggressive
conduct, and some misled attorneys confuse
bullying with zealous advocacy. The unfor-
tunate paradox in the practice of law is that,
while civility among parties and counsel is
championed as the gold standard, the real

ity is that bullying sometimes pays off.
Attorneys who bully do so to intimidate and
gain or regain power and control. When
successful, hyper-aggressive conduct can
cause opposing lawyers (particularly new
attorneys) to doubt both their cases and
competence. When this happens, an inexperienced
attorney can lose sight of the true
goal — success for the client — and grab
desperately for a fictitious one: getting the
case over with, even if it means persuading
a client to accept an unfavorable settlement.
This, of course, is a bully’s desired outcome...

I recommend clicking on the following link to get the original story, which is full of terrific links.
Responding to Legal Threats
Citizen Media Legal Project

Even if you have done everything right and taken every possible precaution, there may come a time when you are sued or receive a legal threat. The first thing you should do is take a deep breath and assess the situation.

First, determine what type of legal threat you received. Most legal threats come in the form of a letter or email. Typically, the letter or email will demand that you cease whatever activity is being complained about and desist from engaging in the conduct in the future. If you receive such a letter or email, you should carefully check to see if the correspondence includes an attachment that bears the name of a court or otherwise resembles a complaint or legal filing. Consult the following examples to determine what type of threat you've received:

Examples of cease-and-desist letters and email: Stutz Artiano Letter, DirectBuy Letter, Best Buy Letter, Goldman Letter, Diebold Letter, Strahl Email, and Dreamworks Email.

Examples of lawsuit complaints that should help you determine whether you have been sued: Mayhew Complaint, Ronson Complaint, and Pivar Complaint.

Examples of subpoenas that should help you determine whether you have been served with a subpoena: Earthlink Subpoena, AutoAdmit Subpoena, Tice Subpoena, and IBM Subpoena.

Second, weigh your options as to how to respond. It is imperative that you DO NOT DELAY. Even if you have only received a threatening letter or email and have not been sued, you should take the threat seriously and review the Responding to Correspondence Threatening Legal Action section of this guide to help you formulate a response. If you receive a lawsuit or subpoena, you should review the Responding to Lawsuits or Responding to Subpoenas sections of this guide to determine how to respond.

Third, consider hiring a lawyer or seeking legal self-help. Even if you believe the legal threat you've received is meritless, it is best not to minimize the situation. Do not assume that the threatening party will simply go away. Speaking to a lawyer, even if it is only a phone call, or doing some legal research can help to set your mind at ease and get you started on the right path to deal with the legal threat. See our Finding Legal Help section for some guidance.

Tuesday, July 12, 2011

3 San Diego Superior Court judges indicted for taking bribes: Judges Michael Greer, James Malkus and G. Dennis Adams

Monday, July 11, 2011

When judges are more inflamed than juries in murder cases

Oklahoma pharmacist sentenced to life for killing would-be robber

Fifty-nine-year-old calls his sentence 'an injustice of a monumental proportion'
July 11, 2011

An Oklahoma pharmacist has been sentenced to life in prison with the possibility of parole for first-degree murder in the shooting death of a teenager who tried to rob the south Oklahoma City pharmacy where he worked.

Fifty-nine-year-old Jerome Ersland was sentenced Monday after Oklahoma County District Judge Ray Elliott rejected a defense motion to suspend the sentence.

Ersland had no reaction and said nothing as the sentence was handed down. As he left the courtroom, he responded to a reporter's shouted question by calling the sentence "an injustice of a monumental proportion."

A jury convicted Ersland and recommended the life with the possibility of parole sentence for the May 2009 shooting of 16-year-old Antwun Parker. Defense attorney Irven Box said the conviction and sentence will be appealed.

Confronted by two holdup men, Ersland pulled a gun, shot one of them in the head and chased the other away. Then, in a scene recorded by the drugstore's security camera, he went behind the counter, got another gun, and pumped five more bullets into Parker as he lay on the floor unconscious.

At the trial, prosecutors argued that Ersland crossed into the wrong when he shot the unarmed and unconscious Parker five more times.

Ersland contended that he was defending himself and two co-workers from a robber who still posed a threat.

When Judges Override Juries, Death Is Often the Sentence

July 11, 2011

Alabama allows judges to reject sentencing decisions from capital juries, which sounds like a sensible idea. You might want a mature and dispassionate jurist standing between a wounded community’s impulse toward vengeance and a defendant at risk of execution.

“If you didn’t have something like that,” said Judge Ferrill D. McRae, who spent 40 years on the bench in Mobile before he retired in 2006, “a jury with no experience in other cases would be making the ultimate decision, based on nothing. The judge has seen many, many cases, not just one.”

Judge McRae, chatting on the phone the other day, recalled having breakfast with Justice Thurgood Marshall at an American Bar Association meeting not long after the Supreme Court reinstated the death penalty in 1976.

Justice Marshall was a fierce opponent of the death penalty. But, according to Judge McRae, the justice also saw the wisdom of the override system. “He thought it was better that someone who had seen more than one case was making the decision,” Judge McCrae said.

What Justice Marshall probably did not anticipate, though, was that judges in Alabama would not use their power for mercy — that they would, in fact, be even tougher than juries. Since 1976, according to a new report, Alabama judges have rejected sentencing recommendations from capital juries 107 times. In 98 of those cases, or 92 percent of them, judges imposed the death penalty after juries had called for a life sentence.

Indeed, more than 20 percent of the people on death row in Alabama are there because of such overrides, according to the report, from the Equal Justice Initiative, a nonprofit law firm that represents poor people and prisoners. The overrides in Alabama contributed to the highest per capita death sentencing rate in the nation, far outstripping Texas

Judge McRae himself ordered six defendants executed notwithstanding jury verdicts calling for life sentences, more than any other judge in Alabama in the modern history of capital punishment. But he never rejected a jury’s recommendation of death.

Judge McRae said he had tried to determine, in the words of an Alabama law, whether the crime in question was “especially heinous, atrocious or cruel.” Having seen a lot of cases helped him made that decision, he said. “Juries don’t know,” he said, “what is ‘especially heinous, atrocious or cruel.’ ”

Alabama judges have justified their decisions to override in favor of death on other grounds as well. Judge Dale Segrest, who retired from the bench in 2001, said he had rejected one jury’s recommendation that a white defendant’s life be spared on the ground of racial equality. “If I had not imposed the death sentence, I would have sentenced three black people to death and no white people,” he said at a sentencing hearing in 2000 in Wedowee.

Judge Charles C. Partin, who sat in Bay Minette, said the defendant before him was probably not mentally disabled, a factor that may have figured in the jury’s life verdict. “The sociological literature suggests that Gypsies intentionally test low on standard I.Q. tests,” he wrote in a 1990 sentencing order.

Florida and Delaware also allow overrides, but they are subject to strict standards. No one has been sentenced to death in Florida as a result of a judicial override since 1999, and there is no one on death row in Delaware as a consequence of an override. The most recent override in favor of death in Alabama was in March.

Judges in Delaware are appointed, and they generally use their authority to reject death sentences. Alabama judges are elected, often running on tough-on-crime platforms. Overrides are more common in election years.

“Not surprisingly, given the political pressures they face, judges are far more likely than juries to impose the death penalty,” Justice John Paul Stevens wrote in a 1995 dissent from a decision that upheld Alabama’s capital sentencing system. Much has changed in sentencing law since then, and it is not clear that the system would survive a fresh look from the Supreme Court.

One thing that is clear is that Justice Marshall, whatever he said at breakfast, was appalled by how things turned out in Alabama. “It approaches the most literal sense of the word ‘arbitrary,’ ” he wrote in a 1988 dissent, “to put one to death in the face of a contrary jury determination where it is accepted that the jury had indeed responsibly carried out its task.”

Alabama jurors are not notably squeamish about the death penalty, and those opposed to it are automatically excluded from service. Deliberations can be agonizing, former jurors say, adding that they would expect their recommendations to count.

William Davis, who served on a capital jury that unanimously voted for a life sentence, said he did not see the point of the exercise after a judge dismissed the jury’s unanimous recommendation as “not helpful.”

“If the judge is going to overrule the jury,” he said in a court hearing in Montgomery last year, “then you don’t need a jury. The jury don’t serve a purpose.”