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May 16, 2012

Section of Litigation Holds Mock Trial at Annual Conference

The 2012 ABA Section of Litigation Annual CLE Conference crystallized my passion to become a litigator. It was an excellent investment! While there were several informative sessions, “Anatomy of a Trial Boot Camp” was by far the conference highlight. There, industry leaders taught the fundamentals of trial through lectures and an all-day mock trial. Here are the most important points.

Theory and Theme
Every case should have three theories—legal, factual, and persuasive. A case theory is an explanation of what really happened from your client’s perspective. This theory should be advanced through a consistent theme told as a story. And, like any great story, it should include a beginning, middle, and end.

Although basic, these essentials are often overlooked, and the jury is left to draw inferences that may or may not be favorable. Don’t leave anything to chance. Lead the jury. Tell them exactly where you want them to go and which inferences to draw in your favor, and persuade them through your theories and theme.

Opening Statement
Own the room. While all eyes are on you, make it count. Make movements with intentionality. Show the appropriate deference to the court. In doing so, not only does it show professionalism, but it also enhances your credibility with the jury. Lastly, don’t overpromise (in other words, don’t make statements like, “in this case, you will see”). If you aren’t able to keep that promise due to happenstance or evidence preclusion, it will adversely affect your credibility.

Direct and Cross-Examination
Continue to advance your case through each witness. Phrase questions in a manner consistent with your theme. Make the points memorable and understandable to a layperson. Do not follow a script. While you should thoroughly prepare questions, it’s more important to listen to the responses of the witness and ask questions accordingly.

Closing Argument
Close effectively. People tend to remember the first and last thing you’ll say—this is called primacy and recency. With this in mind, your closing argument should closely resemble your opening statement. There, you told the jury where you’d take them, and now that you have, use the closing argument to arm the jurors who you’ve convinced throughout the trial so that they can convince others during deliberation. If it is allowed in your jurisdiction, request jury instructions prior to your closing. This prevents a closing that’s too technical. Lastly, don’t overdo it. Don’t use the closing as a way to review the full case. That will bore the jury. Use the closing as a way to highlight your most important points in a way that’s consistent with your theories and theme. Again, the closing is simply a way to arm your jurors who decide in your favor.

Keywords: litigation, minority trial lawyer, case theory, opening statement, closing statement, examination

—LaKeisha Randall, J.D. pending Georgia licensure

May 16, 2012

Even Nonviolent Felons Lack Right to Bear Arms

In McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), a plurality of the U.S. Supreme Court extended to the states the right of citizens to keep and bear arms. This right under the Second Amendment of the U.S. Constitution was expressed in District of Columbia v. Heller, 554 U.S. 570 (2008). A Wisconsin appellate court, however, has qualified the scope of the Second Amendment by finding as constitutional a Wisconsin statute that bans felons, including nonviolent ones, from possessing firearms. State of Wisconsin v. Pocian [PDF], Wisconsin Appeal No. 2011AP1035-CR (April 11, 2012).

In 1986, the defendant, Thomas Pocian was convicted of three counts of writing forged checks. Although he had completed his probation, Pocian remains a felon because of this conviction. Nearly 22 years later, in November 2008, Pocian shot two deer with a rifle borrowed from his father. After Pocian registered the deer with the Wisconsin Department of Natural Resources (DNR), he was charged with being a felon in possession of a firearm in violation of Wisconsin Statute Section 941.29, which prohibits a felon from possessing a firearm. Pocian moved to dismiss the charge on the grounds that the statute was facially unconstitutional as applied to him. The trial court denied the motion and Pocian filed an interlocutory appeal that was granted. State of Wisconsin v. Pocian, supra, at 3.

In affirming, the court of appeals concluded that the ban on felons possessing firearms is constitutional and extends to all felons. In so doing, the court noted the language found in District of Columbia v. Heller [PDF], 554 U.S. 570, 626–7 (2008), which states that nothing in that decision “should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons, and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Pocian, supra, at 5. As a result, the Wisconsin court noted that, under Heller, such “regulatory measures are ‘presumptively lawful.’” Id. (citing Heller at 627 n. 26).

While the Wisconsin Court of Appeal had previously upheld Wisconsin Statute Section 941.29 against an over-breadth challenge in State v. Thomas, 683 N.W.2d 497 (2004), the Pocian court noted that the ruling in Thomas was based on a standard of review of rationale basis that Heller indicated would not be appropriate in cases involving the Second Amendment. Pocian at 6–7 (citing Heller, 554 U.S. at 628, n. 27).

The question before the court in Pocian was therefore the standard of review to be applied in Second Amendment cases in light of Heller and McDonald. Pocian adopted an intermediate scrutiny used by the Seventh Circuit in United States v. Skoien, 614 F.3d 638 (7th Cir. 2010). Under this standard, a statute passes constitutional muster if it is “substantially related to an important governmental objective.” Relying on United States v. Williams, 616 F.3d 685 (7th Cir. 2010), Pocian concluded that public safety is an important governmental objective, and denying firearms to convicted felons is substantially related to that objective. Relying on Williams, the Pocian court concluded that it was constitutional to categorically ban felons from possessing guns. Pocian at 7.

Pocian’s as-applied challenge was also rejected. In so doing, the court of appeal noted that, while Pocian was a nonviolent felon, public safety comprises more than just the prevention of violence—it includes the prevention of acts that are punished as felonies. As a consequence, the “legislature’s decision to deprive Pocian of his right to possess a firearm is substantially related” to the goal of public safety. Pocian at 8. Relying on United States v. Yancey, 621 F.3d 681 (7th Cir. 2010), the court of appeal further noted that “most scholars of the Second Amendment agree that the right to bear arms was tied to the concept of a virtuous citizenry and that, accordingly, the government could disarm ‘unvirtuous citizens.’” Pocian at 8 (quoting Yancey at 684-85).

Keywords: litigation, minority trial lawyer, Second Amendment, felons, Wisconsin

—John Pierce, Bristol, Virginia

May 16, 2012

Ninth Circuit Grants John Yoo Qualified Immunity

John C. Yoo is a former law clerk to Justice Clarence Thomas—a former general counsel of the U.S. Senate Judiciary Committee and a former deputy assistant attorney general in the Department of Justice’s Office of Legal Counsel (OLC), where, during the administration of George W. Bush, he authored an August 2002 memoranda that narrowly defined the term “torture” and that is now known as the Torture Memo. It was in his capacity as an official of the OLC that Yoo was sued in federal court by convicted felon Jose Padilla and his mother for allegedly subjecting Padilla to coercive interrogation and harsh detainment conditions that Padilla attributes to the Torture Memo. On May 2, three judges of the Ninth Circuit concluded that Yoo, a professor at Berkeley Law School, “must be granted qualified immunity” from the claims of Padilla in light of a 2011 decision of the U.S. Supreme Court. Jose Padillia and Estela Lebron v. John Yoo, U.S. Court of Appeals for the Ninth Circuit Case No. 09-16478, 12 C.D.O.S. 4875.

Padilla was arrested in May 2002 at a Chicago airport on a material witness warrant issued by the district court for the Southern District of New York, where he was held in jail. During this time, President Bush declared Padilla an “enemy combatant,” and he was transferred to a military prison in Charleston, South Carolina, where Padilla was held for more than three and a half years.

In January 2006, Padilla was moved to a federal detention center in Miami, Florida, where he stood trial for federal criminal charges unrelated to his status as an enemy combatant and was found guilty. On appeal, a divided Eleventh Circuit affirmed Padilla’s conviction, vacated his sentence as unreasonably low, and remanded for resentencing.

Two years after his military detention ended in January 2008, Padilla and his mother filed a civil action against Yoo, claiming that he set in motion Padilla’s interrogation and detention “by formulating unlawful policies for the designation, detention and interrogation of suspected ‘enemy combatants’ and by issuing legal memoranda designed to evade legal restraints on those policies and to immunize those who implemented them.” The first amended complaint further alleged that, during his detention, Padilla was subjected to:

Yoo’s motion to dismiss was denied by the district court, which concluded that the plaintiffs could pursue an action against Yoo under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). The crux of the district court’s decision was that “any reasonable office would have understood in 2001–2003 that United States citizen enemy combatants in military detention must be afforded at least the constitutional and statutory rights afforded to ordinary prison inmates.” Padilla v. Yoo, supra.

In overruling the district court, the Ninth Circuit relied on Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011), which held that the former attorney general, John Ashcroft, “did not violate clearly established law by allegedly authorizing federal prosecutors to use material witness arrest warrants, supported objectively by reasonable suspicions, as a pretext for detaining terrorism suspects.” Moreover, the Ninth Circuit concluded that Yoo was entitled to qualified immunity “because it was not clearly established in 2001–03 that the treatment to which Padilla says he was subjected amounted to torture.” In so doing, the Ninth Circuit assumed “without deciding that Padilla’s alleged treatment rose to the level of torture,” but in 2001–03 it was not clearly established that Padilla’s alleged treatment was torture. As such, Yoo was immune from suit.

Keywords: litigation, minority trial lawyer, Ninth Circuit, torture, John C. Yoo

—Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California

May 8, 2012

Supreme Court Hears Oral Argument in Arizona Case

The U.S. Supreme Court heard oral argument on the constitutionality of Arizona’s controversial law seeking to enforce federal immigration, Senate Bill (S.B.) 1070, on April 25, 2012, in the case of Arizona v. United States. Among other things, section 2B of the statute requires Arizona law enforcement to attempt to verify the immigration status of those who are stopped or arrested if “reasonable suspicion exists that the person is an alien and is unlawfully present in the United States.” Only eight justices heard the matter following the recusal of Justice Kagan. Former Solicitor General Paul Clement argued on behalf of the state of Arizona; Solicitor General Donald Verrilli Jr. argued for the United States.

The state of Arizona asserted that it bears a disproportionate share of the costs of illegal immigration. Arizona further asserted that it adopted federal standards when it decided to devote state resources to enforce federal immigration laws in an effort to reduce the cost of illegal immigration.

Before Verrilli could begin speaking, Chief Justice Roberts adamantly noted that the case was not about racial profiling. Verrilli acknowledged this and made clear that the government’s brief did not mention racial profiling. Rather, the United States asserted that Arizona lacks the right to exclude from its borders persons who enter the United States unlawfully because such authority is exclusively vested by the Constitution with the federal government. In response, Justice Scalia asked, “[W]hat does sovereignty mean if it does not include the ability to defend your borders?” The questioning from other justices appeared to reject the government’s contention that S.B. 1070 was an effort to enforce federal law.

Instead, many of the justices appeared sympathetic to the argument that S.B. 1070 was “an effort to let [the federal government] know about violations of Federal law.” As a consequence, the government appeared to shift its argument, asserting that the Arizona law “has significant real and practical foreign relations effects.” Many of the justices, however, did not seem receptive to this argument.

Most of the discussion centered on section 2(B) of the Arizona statute. The liberal members of the Court seemed to focus on the length of time a person could be detained while law enforcement investigated their immigration status. The conservative justices, led by Justice Scalia, focused on whether the state of Arizona could be denied the right to close its borders to those having no right to be there. Toward this end, the state of Arizona argued repeatedly that individuals investigated under section 2(B) would not be detained beyond the limits established by the Fourth Amendment.

Section 5(C) was also discussed. This aspect of the Arizona law makes it an offense for individuals without proper immigration paperwork to seek employment in Arizona. Section 3 of the statute criminalizes intentionally failing to obtain and carry legal immigration papers in Arizona.

The majority of the Court appeared to favor upholding section 2(B) of the Arizona law. The Court’s inclination as to the other provisions of the statute, however, was less clear, especially because of the limited time allocated to these provisions.

Keywords: litigation, minority trial lawyer, Supreme Court, Arizona, immigration

—Bobbie K. Ross, member of the Minority Trial Lawyer editorial board and chair of the Second Amendment Civil Rights Litigation Subcommittee

March 28, 2012

Rule of Professional Conduct Violates First Amendment

In an unpublished opinion, the Court of Appeals for the Second Circuit has found that Rule 7.4 of the New York Rules of Professional Conduct violates the First Amendment. J. Michael Hayes, Esq. v. State of New York Attorney Grievance Committee of the Eighth Judicial District, et al, Docket No. 10-1587–CV (March 2012). Rule 7.4 requires a prescribed disclaimer to be made by attorneys who state that they are certified as a “specialist.”

In 1995, the appellant, J. Michael Hayes, was awarded a certification in civil trial advocacy by the National Board of Trial Advocacy (NBTA), which is now a division of the National Board of Legal Specialty Certification. The NBTA is accredited by the American Bar Association. Following his certification, Hayes began referring to himself in various advertisements and in his letterhead as a “Board Certified Civil Trial Specialist.”

In June 1999, the predecessor of Rule 7.4 went into effect. It contained the same text as Rule 7.4 and allowed attorneys who are certified as a specialist by a private organization approved for that purpose by the American Bar Association to state that they are a “certified specialist,” provided that they identify the certifying organization and “prominently” make the following statement: “[1] the [name of the private certifying organization] is not affiliated with any governmental authority, [2] certification is not a requirement for the practice of law in the State of New York and [3] that certification does not necessarily indicate greater competence than other attorneys experienced in this field of the law.” Hayes, supra at 4.

In May 2000, the New York Grievance Committee contacted Hayes about the print size of a disclaimer used on a billboard advertisement he placed in Buffalo, New York. The advertisement contained the required disclaimer printed in six-inch letters, one inch larger than that required for federal cigarette warnings on billboards. The Grievance Committee also advised Hayes that it was opening an investigation into his use of the phrase “board certified” on his letterhead, which contained no disclaimer. Subsequently, the Grievance Committee advised Hayes that it would recommend formal disciplinary action be taken against him unless he modified the letterhead.

Hayes then filed a declaratory judgment action in the Western District of New York, but the court abstained and dismissed the action because of the pending state disciplinary action. As a consequence, Hayes advised the Grievance Committee that he would comply with the predecessor to Rule 7.4, and the investigation was closed.

In December 2001, Hayes filed a second declaratory judgment action in the same court. The district court concluded that the rule was not unconstitutionally vague as it applied to Hayes, that the disclaimer was sufficient to enable “a person ‘of ordinary intelligence’” to understand what was required, and that the rule provided sufficiently explicit standards to guide the Grievance Committee in the enforcement of the regulation.

The Second Circuit reversed. Although it determined as valid that part of Rule 7.4 requiring attorneys to state that the certifying organization was not “affiliated with any governmental authority” because this provision complied with the standards for regulating commercial speech as expressed in Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557 (1980), the court of appeal nonetheless found other aspects of the rule to be unconstitutional.

Specifically, requiring attorneys to state that certification is not a requirement for practicing law failed the test in Central Hudson because it was difficult to imagine that a significant portion of the public would believe that certification was needed to practice law and no harm was self-evident. See Hayes, supra at 15–16.

Likewise, the aspect of Rule 7.4 requiring attorneys to state that specialization or certification “does not necessarily indicate greater competence than other attorneys experienced in this field of law” also violated the First Amendment. As the court of appeal noted, this part of Rule 7.4 had “clear potential to mislead” because the qualifications necessary for certification “may reasonably be considered by the certifying body to provide some assurance of ‘competence’ greater than that of lawyers meeting only the criterion of having some experience in the field, and a contrary assertion has a clear potential to mislead.” Id. at 17.

Finally, the Second Circuit found that the disclaimer rule was unconstitutionally void for vagueness as it applied to Hayes because a lawyer of average intelligence could not anticipate that the six-inch lettering as used by Hayes would not meet the disclosure requirement.

Keywords: litigation, minority trial lawyer, First Amendment, New York, Second Circuit

—Bobbie K. Ross, member of the Minority Trial Lawyer editorial board and chair of the Second Amendment Civil Rights Litigation Subcommittee

February 27, 2012

Dissent Would Take Defendant's Life for Attorney Errors

The world now knows the story of Cory R. Maples, or so it seems. Sentenced to death by an Alabama jury following his conviction for a double murder, Maples was subsequently abandoned by his lawyers during post-conviction proceedings, resulting in his failure to timely appeal the trial court’s order denying him post-conviction relief. This failure, known in the parlance of federal habeas practice as a procedural default, lead to the rejection by an Alabama federal district court of Maples’ petition for writ of habeas corpus, a decision affirmed by a split panel of the Eleventh Circuit. In so doing, the court of appeals pointed to the default as the reason for rejecting the petition. Maples would now be scheduled for execution but for the U.S. Supreme Court, which reversed the Eleventh Circuit after concluding that Maples was blameless for the default and that, under the circumstances, “no just system would lay the default at Maples’ death-cell door.” Maples v. Thomas, Commissioner, Alabama Department of Corrections, 565 U.S. ___ (2012). The opinion, however, was not unanimous.

In their dissent, Justices Scalia and Thomas would affirm the Eleventh Circuit because the majority opinion “invites future evisceration of the principle that defendants are responsible for the mistakes of their attorneys . . . .” Maples, slip op., Dissent, at 11. While recognizing that a default will not bar habeas review if a “petitioner demonstrates cause and actual prejudice,” the dissent would nonetheless hold a capital defendant responsible for the mistakes and omissions of counsel “because the attorney is the petitioner’s agent” and the petitioner therefore bears “the risk of attorney error.” Id. at 2–3. This rule of agency law, Justices Scalia and Thomas assert, apply when a criminal defendant has no constitutional right to effective assistance of counsel, such as in post-conviction and habeas proceedings. Id. at 3. In such instances, “the client bears the risk of all attorney errors made in the course of the representation, regardless of the egregiousness of the mistake.” Id. (citing Coleman v. Thompson, 501 U.S. 722, 754 (1991)) (emphasis added).

In contrast, mistakes made by counsel in proceedings where a defendant has a constitutional right to effective assistance of counsel “may constitute cause to excuse a resulting procedural default” because the state’s “failure to provide an effective attorney . . . makes the attorney’s error chargeable to the State, and hence external to the defense.” Maples, slip op., Dissent, at 3 (citing Strickland v. Washington, 466 U.S. 668 (1984)). As Justice Scalia quotes from Coleman, it “is not the gravity of the attorney’s error that matters, but that it constitutes a violation of petitioner’s right to counsel, so that the error must be seen as an external factor.”). Id.

In the view of the dissent, Maples failed to demonstrate cause excusing his default. While acknowledging that he was abandoned by the two Sullivan & Cromwell associates handling his case pro bono, the dissent nonetheless contends that Maples was not abandoned by either the firm or by Alabama local counsel. As such, Justices Scalia and Thomas would have Maples pay with his life for the mistakes of his lawyers. They reach this conclusion although the majority opinion states that Sullivan & Cromwell became aware of the default only after receiving a telephone call from the mother of the condemned. See Maples, slip op. at 9. The majority further notes that local counsel, who did not bother to call Sullivan & Cromwell after receiving the order denying the motion for post-conviction relief, “did not ‘operat[e] as [Maples’] agent in any meaningful sense of that word.” Id. at 19.

The dissent justifies the harshness of its result on notions of federalism and comity. As Justice Scalia writes, the “doctrine of procedure default reflects, and furthers, the principle that errors in state criminal trials should be remedied in state court” and federal habeas review “imposes significant costs on the States, undermining not only their practical interests in the finality of their criminal judgments . . . but also the primacy of their courts in adjudicating the constitutional rights of defendants prosecuted under state law.” Maples, slip. op., Dissent, at 1 (citation omitted). As such, precedent and the need to ensure “an orderly system of criminal litigation conducted by counsel” “allow a State to stand on its rights and enforce a habeas petitioner’s procedural default even when counsel is to blame.” See id. at 10. In other words, retain your lawyer with care.

Keywords: litigation, minority trial lawyer, procedural default, Supreme Court

—Edward Romero, Greenan, Peffer, Sallander & Lally LLP, San Ramon, California

February 9, 2011

Ninth Circuit Affirms Same-Sex Marriage Ruling

In a highly anticipated and widely reported decision, a Ninth Circuit Court of Appeals panel affirmed a district court judgment ruling that California’s constitutional amendment banning same-sex marriage violated the Fourteenth Amendment to the U.S. Constitution. Prior to 2008, the California Supreme Court held that the California Constitution guaranteed the right to marry to both same-sex and opposite-sex couples. However, in November of 2008, through a ballot referendum known as Proposition 8, the people of California amended their state constitution to eliminate the right of same-sex couples to marry. Shortly after that amendment was passed, a group of plaintiffs brought suit in federal court to challenge the new law. The district court found that Proposition 8 was unconstitutional and struck it down.

The state of California appealed the district court’s decision to the Ninth Circuit Court of Appeals. In the Ninth Circuit case, Perry v. Brown [PDF], Case Nos. 10-16696 and 11-16577, the plaintiffs argued that, among other things, Proposition 8 and the California ban on same-sex marriage violated the Equal Protection Clause. A majority of the three-judge panel agreed with the plaintiffs and affirmed the district court. The Perry majority held that Proposition 8, which only excluded same-sex couples from marrying and did not impact any other rights of same-sex couples to enter into statutory “domestic partnerships,” improperly targeted a minority group. The court reasoned that, because Proposition 8 left in place the ability of same-sex couples to engage in all of the activities typically associated with marriage, it could not reasonably have been enacted for purposes such as promoting childrearing by biological parents, encouraging responsible procreation, or controlling the education of schoolchildren. Accordingly, the panel majority concluded that Proposition 8 lacked a purpose and only served to deny the legal designation of “marriage” from a particular minority group.

The Perry court specifically declined to address whether same-sex couples have a fundamental right to marry under the U.S. Constitution. Many commentators and observers have predicted that the case and the issue of same-sex marriage will now head to the U.S. Supreme Court.

Keywords: litigation, minority trial lawyer, California, same-sex marriage, Proposition 8

—Brian Josias, Chicago, Illinois

February 9, 2011

Republicans Seek to Reform Post-Booker Sentencing

In the landmark 2005 case United States v. Booker, the U.S. Supreme Court, continuing and expanding on a line of cases that slowly chipped away at the sentencing restrictions placed on judges by legislatively imposed sentencing guidelines, turned the criminal sentencing regime in the federal courts on its head. In Booker, the Supreme Court held that the U.S. sentencing guidelines, which courts previously had to follow in meting out sentences to federal criminal defendants, unconstitutionally deprived defendants of their rights under the Sixth Amendment to the U.S. Constitution. The Court held that courts could no longer blindly adhere to the sentencing guidelines and that, instead, courts could only use the guidelines as nonmandatory suggestions.

Over the ensuing seven years, district and appeals courts have slowly realized that, when they sentence the more than 80,000 criminals that pass through their doors every year, the sentences given must be decided by the judge alone, based on the dictates of the applicable statute and notions of fairness, not just the calculations of the sentencing guidelines.

Although the changes brought about by Booker have generally been welcomed by defense attorneys and advocates for criminal defendants, in the past few months, Republicans in Congress have called for a return to a system that provides less discretion to the sentencing judge and will yield fewer “breaks” and longer sentences for most defendants. According to Republican Representative James Sensenbrenner and other critics of the post-Booker sentencing process, the current sentencing regime results in unfair disparities between similarly situated defendants based on factors such as geography and, more disturbingly, race.

Many have argued that, under Booker, black, male defendants have been the victims of unfair treatment, and the statistics calculated by the U.S. Sentencing Commission, the government agency that crafts the sentencing guidelines, reveal that, post-Booker, the average sentence for a black male was 20 percent longer than that for a white male. Defenders of the current system respond that this disparity is largely the result of white males being given lesser sentences, rather than black males receiving tougher sentences. An additional factor that may be partially to blame for the sentencing disparities is a perception that judges believe that the sentences recommended by the guidelines are overly harsh, especially in the areas of corporate fraud and child pornography.

Although defenders of the current system have urged Congress to leave it in place, congressional Republicans have proposed tough new mandatory minimum sentences to be imposed by statute and a reduction of the budget and role of the sentencing commission. The House Judiciary Committee plans to conduct more hearings on the issue in the spring.

Keywords: litigation, minority trial lawyer, sentencing guidelines, United States v. Booker

—Brian Josias, Chicago, Illinois

February 9, 2011

Holder Tackles States' Efforts to Restrain Ballot Access

In the past several years, states across the country have launched efforts to make it more difficult for many people or groups of people to gain access to the ballot box. Thirteen states have passed new voting laws that include regulations that require government-issued photo IDs to vote or to register to vote, shorten early voting periods, or limit voter-registration efforts by third-party groups. Supporters of these laws claim that they are necessary to combat voter fraud. Opponents of these new voter-registration laws often complain that they are intended to disenfranchise minorities and argue that multiple studies and investigations, including an investigation by President George W. Bush’s Justice Department, demonstrate that voter fraud in the United States is not a significant problem. Those opposed to the new laws claim that they amount to a “modern-day equivalent of a poll tax” and cite studies that estimate that the new laws could affect more than five million voters across the country—primarily minorities who lack the necessary government-issued photo IDs.

While speaking at an event honoring the Martin Luther King Jr. holiday in Columbia, South Carolina, Attorney General Eric Holder indicated that the Department of Justice intends to aggressively review these new laws to ensure that they comply with the 1965 Voting Rights Act, which requires that 16 mostly Southern states with histories of discrimination secure Justice Department approval prior to making voting-law changes. Providing evidence for Attorney General Holder’s pledge, in late 2011, the Justice Department’s Civil Rights Division ruled that South Carolina’s new voter-identification law was illegal because it would disproportionately impact minorities.

Attorney General Holder also indicated that the Justice Department intended to forcefully respond to several lawsuits filed by states challenging the provisions of the Voting Rights Act itself. These lawsuits have asserted that developments in race-relations have outstripped the purpose and need for the law and have sought to have the law invalidated. In Holder’s South Carolina remarks, he responded to the allegations in these suits by noting that, although much progress has been made, “the reality is that—in jurisdictions across the country—both overt and subtle forms of discrimination remain all too common.”

In addition, the issues of voter fraud and the new state voting laws have been frequently raised in the ongoing race for the GOP presidential nomination, and some candidates for the GOP nomination have claimed that the Voting Rights Act permits unwanted meddling by the federal government. Despite this political attention, Holder stated that the Department of Justice would continue to vigorously scrutinize voting laws across the country to make certain that all Americans can vote without fear of discrimination.

Read the entire speech at the Department of Justice’s website.

Keywords: litigation, minority trial lawyer, Department of Justice, voter registration

—Brian Josias, Chicago, Illinois

December 20, 2011

California Supreme Court Reverses Capital Murder Convictions

In a rare occurrence, a unanimous California Supreme Court reversed the guilt and death judgments imposed against two Los Angeles gang members who were convicted in 1997 of committing two murders with special circumstances. People v. Allen et al, California Supreme Court Case No. S066939, 11 California Daily Opinion Service (C.D.O.S) 14528. Reversal was ordered because the trial court abused its discretion in removing a juror during deliberations in the guilt phase of the trial in violation of California statutory law. In so doing, the California Supreme Court avoided defendants’ constitutional claims. The rationale expressed by the California Supreme Court may prove instructive in other cases involving juror removal.

Defendants were members of a Los Angeles gang. Allen, supra, at 14528. At trial, witnesses testified that defendant Allen shot the victims as they sat in a parked car. One witness, Carl Connor, claimed that he was near the scene and identified Allen as the shooter. Defendants, however, impeached Connor by introducing into evidence his employment timecard that showed he was at work the day of the murders. Conner, however, testified that he and a coworker named “Jose” frequently clocked in for each other so that their timecards would show that they were at work even when they were not. Id. at 14528.

During deliberations in the guilt phase of the trial, two jurors advised the court that another juror, No. 11, had made up his mind before the case had been submitted. Over defendants’ objections, the trial court then spoke individually to each juror regarding the conduct of Juror No. 11, who denied having made up his mind about the case before deliberations; admitted stating during deliberations that the prosecution had not “convinced” him; and further admitted to stating that based on his work experience, Hispanics do not falsify timecards. Juror No. 11 was not Hispanic. Id. at 14529. The trial court granted the prosecution’s motion to discharge Juror No.11, finding that he had made up his mind before deliberations and based his decision of the credibility of Connor not on the evidence, but on the personal opinions of how Hispanics as a group behaved. Id. at 14530. Defendants were convicted and sentenced to death.

In reversing, the California Supreme Court noted that “[g]reat caution is required in deciding to excuse a sitting juror” because it “may upset the delicate balance of deliberations.” Allen, supra, at 14531. The court further noted that a unanimous criminal verdict is an important and long-recognized safeguard in American law that “rests on the premise that each individual juror must exercise his or her own judgment in evaluating the case.” Because of this importance, review of a juror’s discharge “must appear on the record as a ‘demonstrable reality’” and “involves ‘a more comprehensive and less deferential review’ than simply determining whether any substantial evidence’ supports the court’s decision.” “This heightened standard” protects “a defendant’s fundamental rights to due process and a fair trial, based on the individual votes of an unbiased jury, which are also hallmarks in American jurisprudence.” Allen, supra, at 14531 (citation omitted). The court also made clear that a juror is required to “maintain an open mind, consider all the evidence, and subject any preliminary opinion to rational and collegial scrutiny before coming to a final determination. Id. at 14532–14533.

With this in mind, the Supreme Court concluded that the juror’s statements that the prosecution failed to prove its case did not establish prejudgment of the case. As the Court noted, “[a] juror who holds a preliminary view that a party’s case is weak does not violate the court’s instructions so long has his or her mind remains open to a fair consideration of the evidence, instructions, and shared opinions, expressed during deliberations.” Id at 14532.

Nor did the juror impermissibly rely on facts not in the evidence when he remarked that Hispanics do no falsify timecards. Rather, the juror’s “positive opinion about the reliability of Hispanics in the workplace” was “an application of his life experience, in the specific context of timecards and the workplace, that led him to conclude Connor was not telling the truth about the shooting.” Id. at 14534. Finally, the court made clear that “[i]t is not the province of trial or reviewing courts to substitute their logic for that of jurors to whom credibility decisions are entrusted.”

—Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA

December 9, 2011

Are Corporations Liable under the Alien Tort and Torture Victim Protection Acts?

The U.S. Supreme Court has granted certiorari in two cases involving the Alien Tort Statute and the Torture Victim Protection Act. Enacted as part of the Judiciary Act of 1789, the Alien Tort Statute (ATS) confers on federal district courts’ “original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” 28 U.S.C. section 1350. Over two centuries later, Congress enacted the Torture Victim Protection Act (TVPA) and codified it as a note to 28 U.S.C. section 1350. The TVPA creates a private right of action against individuals who engage in torture or extrajudicial killing.

The issue before the Supreme Court is whether corporations can be liable under the ATS and the TVPA. In the summer and fall of 2011, the D.C. and Ninth Circuits concluded that corporations are liable under the TCA. These decisions, however, conflict with the Second Circuit holding in Kiobel v. Royal Dutch Petroleum Company et al, 621 F.3d 111 (2nd Cir. 2010), rehearing en banc denied, 642 F.3d 379 (2nd Cir. 2010); rehearing denied 642 F.3d 268 (2nd Cir. 2011), certiorari granted. Kiobel holds that there is no federal question under the ATS when claims are asserted as to corporations. Kiobel, supra, at 117–120.

In Kiobel, Nigerian citizens alleged that Dutch, British, and Nigerian corporations engaged in oil exploration and production aided and abetted the Nigerian government in committing violations of the law of nations. Kiobel, supra, 642 F.3d at 117. Plaintiffs sought damages under the ATS and relied on international law—but not on a treaty of the United States—as the basis for their claims.

In affirming the district court’s dismissal of some of plaintiffs’ claims and reversing as to those claims that were not dismissed, the Second Circuit concluded that the ATS confers subject-matter jurisdiction over a limited number of offenses that are defined by “customary international law.” The court of appeal characterized such law as “those standards, rules or customs” that affect the “relationship between states or between an individual and a foreign state” and that are “used by those states for their common good and/or in dealings” among or between themselves. Kiobel, supra, at 117–118 (citation omitted). The limited subject matter of the ATS therefore requires federal courts to “examine the specific and universally accepted rules that the nations of the world treat as binding in their dealings with one another.” Id. at 118.

In holding that corporations are not subject to the ATS, Kiobel determined that “the principle of individual liability for violations of international law has been limited to natural persons . . . because the moral responsibility for a crime so heinous and unbounded as to rise to the level of an ‘international crime’ has rested solely with the individual men and women who have perpetrated it.” Kiobel, supra, at 119. As a result, because “customary international law imposed individual liability for a limited number of international crimes” the “ATS provides jurisdiction over claims in tort against individuals who are alleged to have committed such crimes.” Id. at 120.

Kiobel, however, conflicts with decisions from other circuits, including John Doe VII et al. v. Exxon Mobile Corporation et al., 654 F.3d 11 (D.C. Circuit 2011), holding that a corporation may be liable under the ATS. Moreover, in late October 2011, the Ninth Circuit concluded in a splintered en banc decision that the ATS extends to the conduct of corporations abroad. Sarei et al v. Rio Tinto, PLC et al., 2011 U.S. App. Lexis 21515.

Kiobel will be argued in tandem with a decision from the D.C. Circuit involving the TVPA. Mohamad et al. v. Rajoub, 634 F.3d 604 (D.C. Circuit 2011). In Mohamad, the sons and widow of a decedent sued the Palestinian Authority and the Palestine Liberation Organization for damages after the defendants allegedly tortured and killed the decedent in violation of both the TVPA and federal common law. The district court dismissed the action, concluding that only a natural person can be sued under the TVPA and that plaintiffs had no claim under federal common law. In affirming, the D.C. Circuit held that the term “individual” as used in the TVPA was intended to denote only natural persons.

Keywords: ATS, TVPA, Alien Tort Statute, Torture Victim Protection Act

—Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA

December 9, 2011

Truth in Savings Act Bars Claims under California Law

A California state appellate court has concluded that the 1996 amendments to the federal Truth in Savings Act (TISA), 12 U.S.C. section 4301 et seq., bar private rights of action under the state’s broad Unfair Competition Law (UCL). Rose v. Bank of America, N A., 11 California Daily Opinion Services (C.D.O.S.) 14134.  

The plaintiffs in Rose were deposit account holders who alleged in a putative state class action that the Bank of America failed to properly notify them of fee increases in violation of TISA. Enacted in 1991, TISA requires banks and other depository institutions to provide, inter alia, “clear and uniform disclosure” of “the fees that are assessable against deposit accounts.” 12 U.S.C. section 4301(b). The purpose is to allow consumers to “make a meaningful comparison between the competing claims of depository institutions with regard to deposit accounts.” Section 4310 of title 12 contained a private attorney general provision that provided a private right of action against depository institutions that failed to comply with either TISA or the regulation promulgated pursuant to the statute known as Regulation DD.

The private attorney provision of TISA, however, was repealed by Congress in 1996 through enactment of a sunset provision that became effective September 30, 2001. Schall v. Amboy National Bank, 279 F.3d 205, 209, note 2 (3rd Cir. 2002). The repeal of section 4310 “entirely eliminated the [private] cause of action, thereby releasing banks from future claims of private parties.” Rose v. Bank of America, supra, quoting Schnall v. Amboy National Bank, supra, 279 F.3d at 209. Federal agencies, however, may enforce compliance with TISA. Schnall v. Amboy, supra, at 209 n.2.

The UCL prohibits “any unlawful, unfair or fraudulent business act or practice.” Rose, supra. The scope of the statute is broad and encompasses “anything that can properly be called a business practice and that at the same time is forbidden by law.” Id. Moreover, the UCL borrows violations from other laws, making them independently actionable. See Korea Supply Co. v. Lockheed Martin Corporation, 29 Cal. 4th 1134, 1143 (2009). Notwithstanding its scope, the UCL cannot borrow violations from others laws that bar the action.

In holding that TISA bars claims under the UCL, the Rose court noted that Congress not only rejected a private right of action under TISA but also rebuffed legislation proposed in 2001 to reinstate civil liability. As such, the court concluded that “[a]llowing private plaintiffs to recover on a UCL claim based solely on TISA violations would constitute an ‘end run’ around the limits of enforcement set by Congress.” Id. (citing Gunther v. Capital One, N. A., 703 F.Supp. 2d 264, 270–271 (E.D. N.Y 2010)).  

Keywords: Truth in Savings Act, Unfair Competition Law, Bank of America, Rose

—Edward Romero, Greenan, Peffer, Sallander & Lally, San Ramon, CA

December 8, 2011

Ninth Circuit Grants Qualified Immunity to Officers Using Tasers

The Ninth Circuit recently issued an opinion holding that the use of Tasers by law enforcement officers to subdue individuals suspected of committing minor offenses is subject to constitutional limits on the use of excessive force.

Two cases, Mattos v. Agarano and Brooks v. City of Seattle, were heard together en banc consolidated for disposition. Both dealt with plaintiffs-appellees who were tased by law enforcement after encounters surrounding minor offenses.

Malaika Brooks was pulled over for speeding. When she refused to sign the ticket or exit her vehicle, the officers tased her even though she had informed them that she was pregnant and “less than 60 days from having [her] baby.” After being tased multiple times, Brooks was detained and ultimately taken into custody.

Jayzel Mattos was tased when the police responded to a domestic dispute after Jayzel and her husband, Troy, had an argument. When Mattos stepped in between one of the officers and her husband to try to diffuse the situation, the officer tased her. Mattos and her husband were then arrested.

After their respective incidents, Brooks and Mattos both filed lawsuits under 42 U.S.C. § 1983, seeking damages for alleged Fourth Amendment violations. The officers claimed they were entitled to qualified immunity, but the lower court in both cases disagreed. The officers then appealed to the Ninth Circuit.

For qualified immunity to apply, it must be shown that (1) the facts shown must make out a clear violation of a constitutional right, and (2) that constitutional right must have been “clearly established” at the time of the violation.

Relying on Bryan v. MacPherson, 630 F.3d 805 (9th Cir. 2010), the Ninth Circuit found that although both Brooks and Mattos had alleged constitutional violations surrounding excessive force, the officers who tased them were entitled to qualified immunity, because at the time that each woman was tased, “‘there was no Supreme Court decision or decision of [the Ninth Circuit] addressing’ the use of a taser in dart mode.” Because of the lack of authority, the court concluded that reasonable officers “could have made a reasonable mistake of law regarding the constitutionality of the taser use in the circumstances” at hand and that the contours of the constitutional right alleged were not clearly established at the time of the violations.

Keywords: Ninth Circuit, tasers, law inforcement

—Bobbie K. Ross, Michel & Associates, P.C., Long Beach, CA

December 7, 2011

Minority Teachers Are on the Rise, but Retention Is a Problem

A recent study by two researchers from The University of Pennsylvania shows that the efforts of government agencies and nonprofit organizations to recruit minority teachers has largely worked. Researchers Richard Ingersoll and Henry May found that the teaching field is much more diverse today than it was 20 years ago. While there was a 41 percent growth rate of white teachers, the growth rate of minority teachers was 96 percent. Since the late 1800s, the number of minority teachers increased from 325,000 to 642,000.

However, while these numbers indicate that recruitment strategies are working, research shows that these efforts have not been enough to bridge the gap between the number of minority students and minority teachers. For example, in the 2008–09 academic year, 41 percent of students in elementary and secondary schools were minority, yet only 16 percent of their teachers were of color.  

A major contributing factor to this problem was a high turnover rate of minority teachers.  In the 2003–04 academic year, 47,600 teachers of color entered the field, and by 2004–05, 56,000 minority teachers had left. The problem of turnover can be attributed to the poor working conditions of these teachers who are often found in public schools that educate mostly poor students. Ingersoll and May proposed that improving the working conditions for these teachers and in turn increasing the retention rate of minority teachers does not have to be an expensive endeavor. At the end of the day, it is more important to these minority teachers to feel valued as professionals.

Keywords: University of Pennsylvania, minority teacher, minority turnover

—Dorcas Adekunle, Drexel University Earle Mack School of Law Student, Philadelphia, PA

August 16, 2011

Project for Attorney Retention: Fewer Promotions Among Female Lawyers

According to the latest report from the Project for Attorney Retention (PAR), female lawyers still lag behind their male counterparts in becoming partners. Although this is not a recent trend, the PAR report highlights the growing disparity between the two groups. According to the report, new male partners outnumbered new female partners more than two to one in 2011. The promotion rate of women at the 123 large law firms surveyed decreased two percentage points this year, from 34 percent to 32 percent. Such findings are in accord with recent data from other organizations tracking women in the legal profession. The National Association of Women Lawyers, for example, reported that while women made up 60 percent of staff attorney positions, a non-partnership track tier, they made up only 15 percent of equity partners at large firms.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

August 15, 2011

ABA Advocates Solutions to Overburdened Immigration Court System

In a recent Senate Judiciary Committee hearing, Senator Patrick Leahy expressed that the pace of justice in the immigration courts is too slow. Senator Leahy, chairman of the Senate Committee on the Judiciary, stated that he called the hearing to have a constructive discussion about how the immigration courts can be improved. Karen Grisez, chair of the American Bar Association Commission on Immigration, stated at the hearing that the “immigration system is in crisis, overburdened, and under-resourced.” Both Senator Leahy and Grisez believe that the courts do not operate fairly and efficiently. Grisez stated that underfunding the courts endangers the due process of immigrants who appear before them. In the past several years, the number of non-citizens removed from the United States has increased more than 450 percent from 69,680 in fiscal year 1996 to 393,289 in fiscal year 2009.

The Executive Office for Immigration Review has implemented a number of measures to improve the courts. These measures consist of expanding non-citizen access to legal counsel, increasing the use of prosecutorial discretion to reduce unnecessary litigation, allowing asylum officers to handle immediate claims raised as a defense to expedited removal, and removing the requirement that asylum seekers file their claim within one year of their arrival in the United States. Grisez pointed out that there are still further steps that can be taken to improve the system, as highlighted in the ABA’s 2010 report entitled “Reforming the Immigration System: Proposals to Promote Independence, Fairness, Efficiency, and Professionalism in the Adjudication of Removal Cases.”

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

August 12, 2011

Proposition 8 Supporters Fail in Attempt to Have Ruling Vacated Due to Alleged Judicial Bias

On June 13, 2011, another hearing was held regarding the embattled Proposition 8 ban on same-sex marriage in California. Proposition 8 supporters are trying to have the ruling of former Chief Federal District Judge Vaughn Walker that struck down the ban vacated. They base their appeal on the grounds that Judge Walker, who after his retirement confirmed that he is in a long-term same-sex relationship, should have either removed himself from the case or disclosed his position on same-sex marriage in relation to his own relationship. Proposition 8 supporters allege that because he is in a same-sex relationship, Judge Walker would personally benefit from his own ruling.

Judge James Ware, who presided over the hearing, grilled the supporters' counsel by asking him why he assumed Judge Walker had any intention of getting married just because he was in a 10-year relationship. Judge Ware pointed out that if Judge Walker did not wish to marry, he would not be in the same position as the same-sex couples who brought the lawsuit. On June 14, 2011, Judge Ware issued his decision upholding Judge Walker’s ruling. Judge Ware determined that there was no evidence that suggested that Judge Walker was going to marry his long-term partner. Judge Ware concluded that the judge’s relationship did not require him to remove himself from the case nor was he obligated to disclose his relationship.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

August 9, 2011

Supreme Court: State Can Offer Undocumented Aliens Reduced Tuition

On June 6, 2011, the United States Supreme Court refused to review a California Supreme Court ruling that upheld a state law giving undocumented aliens living in California reduced in-state tuition rates at public universities. To be eligible for the tuition breaks, illegal immigrants are required to attend a California high school for a minimum of three years and to successfully graduate. In the case in question, Martinez v. Regents of the University of California (No. 10-1029), a group of out-of-state students had challenged the law on the grounds that it provided preferential treatment that violates federal law. Currently, several other states, including Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Oklahoma, Texas, Utah, Washington, and Wisconsin have similar laws that make undocumented aliens conditionally eligible for in-state tuition while a dozen other states have passed laws specifically banning the practice.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

August 9, 2011

Alabama Passes Nation's Toughest Illegal Immigration Law

On June 9, 2011, Alabama passed what is being called “the most restrictive law in the nation” against illegal immigration. The new law is modeled after Arizona’s controversial immigration law, which when passed in April of 2010, was regarded as the nation’s toughest bill on illegal immigration. Among its many provisions, the Alabama law requires that schools find out if students are in the country lawfully but does not prohibit them from attending school. However, several opponents of the law believe that this provision may stop immigrant parents from sending their children to school for fear of deportation or arrest. In addition, the law allows police to arrest anyone suspected of being an illegal immigrant if the person is stopped for some reason, requires all businesses to check the legal status of workers using a federal system called “E-Verify,” makes it a crime for a landlord to knowingly rent to an illegal immigrant or to transport a known illegal immigrant. According to the Pew Hispanic Center, there are an estimated 120,000 illegal immigrants in the state of Alabama, which is nearly a five-fold from a decade ago. Many of these immigrants are said to be working on farms, in chicken processing plants, and in construction. Advocacy groups have promised to challenge the new law, which takes effect on September 1, 2011. Those who support the new law, such as Republican Governor Robert Bentley, are confident the law will withstand any legal challenges. 

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

August 3, 2011

New York's Marriage Equality Law Faces Its First Legal Challenges

On July 25, 2011, opponents of New York State's newly passed Marriage Equality Law filed a lawsuit alleging that the law had been rammed through the state Senate. In its effort to force the invalidation of the law, a non-profit group called New Yorkers for Constitutional Freedoms, argued that the new law violates New York's Open Meetings Law and the Senate's rules. Also in question are the procedures volunteer judges used to waive the 24-hour waiting period after the marriage licenses were issued in order to allow couples to marry immediately once they received their licenses. Domestic Relations Law §13-b allows an immediate wedding when an emergency arises, such as imminent death or that the public's interest would be furthered by a waiver of the waiting period. However, since over 400 such waivers were granted on July 24, 2011, opponents of the law allege that they were not all properly issued.

—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY

August 3, 2011

American Wealth: Whites Leaving Minorities in the Dust

A recent study shows that the wealth gap between White Americans and Hispanic and African Americans has drastically widened during the current recession. The study, performed by the Pew Research Center, found that from 2005 until 2009, inflation-adjusted median wealth fell 66 percent among Hispanic households and 53 percent among African American households. These numbers are significantly larger than the 16 percent decline among white households. The recession has left the median African American household with $5,677 in wealth and Hispanic households with $6,325, in contrast to white households which had a median of $113,149. The study showed that the housing crisis is largely to blame for these large discrepancies in wealth. Other studies have concluded that African Americans and Hispanics have a great number in equity because they were more likely to be sold a high-cost, sub-prime loan, regardless of their credit history. Those mortgages have the highest foreclosure rates.

—Joseph M. Hanna, Goldberg Segalla, Buffalo, NY

July 25, 2011

Federal Courts Continue to See a Rise in Pro Se Filings

As previously reported in the World Justice Project study of the United States' justice system, despite law schools continuing to graduate record numbers of new attorneys, individuals still continue to have difficulty accessing and affording attorneys for civil matters. The latest confirmation of this ongoing problem is a report issued by the Administrative Office of United States Courts, highlighting the ongoing trend of more pro se cases being filed in federal courts. The Administrative Office’s report found that 72,900 pro se cases were filed in fiscal year 2010 —an increase from 71,543 pro se cases filed in 2009. Although the majority of pro se cases are filed by prison inmates challenging some aspect of their imprisonment, the number of pro se cases filed by non-prisoners continues to increase as well, climbing from 20,545 in fiscal year 2007 to 24,319 in fiscal year 2010.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

July 25, 2011

Fortieth Anniversary of "War on Drugs" Marked by Appeals to Revise Drug Policies

June 17, 2011, marked the 40th anniversary of the United States' war on drugs. The occasion was marked around the country by protests, meetings, and calls for evaluation and reform of the policies and practices of the 40-year effort to eliminate the use and trafficking of illegal drugs. Included in those efforts was a report by Law Enforcement Officers Against Prohibition (LEAP), an organization that includes current and former police chiefs of some of America's largest cities highlighting the negative consequences of the drug war and encouraging a revised view of drug abuse as a public health issue rather than a criminal problem and pursuing the radical course of legalizing drugs. The LEAP report was particularly critical of recent government action, which has seen funding for demand reduction (in the form of education and rehabilitation programs) decline while funding for traditional crime-fighting approaches has increased. The LEAP report also highlighted the devastating impact that America's war on drugs has had on Mexico as it continues to struggle to contain massive drug-trade related violence.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

July 25, 2011

AP Reports Record Number of Deportations

This week the Associated Press reports that according to Immigration and Customs Enforcement data, the United States deported nearly 393,000 people in fiscal year 2010, setting a new record for deportations. According to the article, the Obama administration has placed increased emphasis on targeting dangerous convicted criminals for deportation, and the administration claims that this increased emphasis is responsible for the increase in deportations. Immigration activists quoted in the article worry, however, that the increased deportations are not focused solely on violent offenders and other serious criminals and cite increases in deportations for drug-related offenses and traffic offenses as evidence that the deportations are part of a larger program aimed at removing a large group of non-citizens. Law enforcement sources quoted in the article, including the executive director of an organization of sheriffs and police chiefs, reported that the increased deportations are having their desired effect and are making communities safer by removing dangerous individuals.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

June 22, 2011

Supreme Court Issues Decision in Wal-Mart v. Dukes

On June 20, 2011, the United States Supreme Court handed down a widely anticipated decision in the Wal-Mart Stores Inc. v. Dukes case. The Supreme Court’s opinion reversed the decision of the district court to certify a class of over a million current and former female employees of Wal-Mart stores who alleged that Wal-Mart had discriminated against them in violation of Title VII. The plaintiffs alleged that Wal-Mart, the nation’s largest private employer, discriminated against all women employed by the company since December 26, 1998, by denying them equal pay or promotions. The district court certified the class under Federal Rules of Civil Procedure 23(a) and (b)(2) and Wal-Mart appealed. The Ninth Circuit affirmed the certification.

Importantly, the plaintiffs did not allege that Wal-Mart had an express corporate policy that discriminated against women. To the contrary, the plaintiffs claimed that Wal-Mart’s discriminatory behavior arose out of the discretion that local managers in each of Wal-Mart’s thousands of stores exercised concerning the matter of pay and promotions. As proof that all women employed by Wal-Mart suffered from discrimination, the plaintiffs relied on statistical evidence of pay and promotion disparities between men and women, anecdotal reports from Wal-Mart’s female employees, and expert testimony about Wal-Mart’s culture and human resources practices.

The Supreme Court reversed the district court’s certification on two grounds. One ground, the nature of the relief sought, was non-controversial, and all nine of the Court’s justices joined in that aspect of that decision. On the other issue, the question of commonality, however, the Court was divided. Five justices (Scalia, Roberts, Thomas, Alito, and Kennedy), in an opinion authored by Justice Scalia, held that there was insufficient “commonality” among the members of the class to sustain class certification. On this point, the majority found it especially telling that Wal-Mart’s official corporate policy prohibited sex discrimination, thereby making it very difficult for the plaintiffs to provide “significant proof” of discrimination” on a class-wide basis. The majority did not suggest that plaintiffs failed to prove the existence of actionable discrimination against specific female employees. Rather, the majority held that the discrimination allegedly suffered by a particular female Wal-Mart employee was insufficiently common with discrimination allegedly suffered by the other 1.5 million members of the putative class.

Four justices, in an opinion authored by Justice Ginsburg, dissented from the majority’s conclusion that the commonality element of plaintiffs claims was lacking. As an initial matter, the dissent opined that the issue of commonality was not properly before the Court. Moreover, the dissenting justices wrote that even if the issue were properly before the Court, the plaintiffs had alleged sufficient facts to establish commonality. Specifically, the dissent felt that the plaintiffs allegations of the discretion afforded to Wal-Mart’s individual store managers, when combined with the plaintiffs’ statistical evidence of actual pay and promotion differences, was sufficient to offer significant proof of common causes of unlawful discrimination and injuries arising from that discrimination. Justice Ginsburg also felt that the Court’s focus on dissimilarities between members of the class improperly conflated the commonality test with other aspects of the class action rule and imposed an inappropriately high bar for future class actions.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

June 13, 2011

United States Ranks Poorly in World Justice Project Rule of Law Index

A recently published study by the World Justice Project ranks the United States 21 out of 66 countries in terms of assuring access to legal counsel and even lower on the affordability of obtaining an attorney. The Rule of Law Index 2011 assessed countries’ performance across eight areas: limiting government powers; curbing corruption; protecting fundamental rights; ensuring order and security; government transparency; access to civil justice; and the effectiveness of criminal justice. Although the United States received good scores in many areas, the judicial system scored poorly in certain key respects because of substantial barriers to access for “disadvantaged groups” and because of a general perception that minorities are not on equal footing within the judicial and legal system when compared to other groups. In addition, the report also highlighted the difficulties the average American faces in affording an attorney in civil disputes and compared that unfavorably with other wealthy and developing nations. On the other hand, the United States scored high in the areas of civil liberties and certain limitations on government powers, such as its well-established system of checks and balances. Additional information about the study, and access to the study itself, may be found here.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

May 31, 2011

Diversity Programming Still a Priority for Nation's Law Firms

The Minority Corporate Counsel Association (MCCA) and the Association of Law firm Diversity Professionals (ALFDP) recently released the results of a new survey showing that law firms across America continue working to improve diversity. Although the survey found that some firms’ efforts were slowed by the economic downtown, many firms reported that their commitment to diversity was only mildly affected by the economic climate.  The survey sought input from 113 large and small law firms around the United States and found, among other things, that 82 percent of the surveyed firms employ a law firm diversity professional. The survey also reported that almost all of the respondent firms have diversity committees and demonstrates that the legal profession continues to recognize the benefits of a diverse workplace and is actively seeking to increase diversity. The complete survey is available here.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

April 28, 2011

Highlights from the Section of Litigation Annual Conference

Minority Trial Committee members and committee events were highly visible during the recent Section of Litigation Annual Conference at the beautiful Fontainebleau Resort in sunny Miami, Florida.

The committee sponsored two very well-received and informative programs at the conference:  “Updates in Foreign Corrupt Practices Act”; and “International Discovery in U.S. Courts: An Analysis of the Use of 28 U.S.C. § 1782.”  These two programs explored important new developments in international litigation.

The committee also hosted some great networking activities, including a Dutch Treat dinner at Tap Tap Haitian Restaurant and the committee’s Networking Lunch. At the Dutch Treat dinner, committee members networked, exchanged practice tips, and had a great time at Tap Tap.  During the conference itself, committee members from across the country joined together to have lunch and network. Participants shared ideas about business development and appreciated the presence of noted committee members Countess Price, assistant general counsel at Monsanto Company and Denise Zamore, associate general counsel at United Healthcare.

Finally, several committee members participated in some of the many educational seminars offered throughout the weekend. Committee cochair Julie Sneed moderated a panel on marketing strategies for women and minority litigators. The panel provided a blueprint for marketing efforts for associates and junior partners to use in building their practices. Committee cochair Anna Torres spoke on a panel discussing the top ten blunders to avoid in deposition. Anna and the panelists shared tips, lessons learned, and best practices for taking and defending depositions, including how to use depositions to fit the theory of your case and the purpose and goal of taking a particular deposition.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, IL

April 28, 2011

The Leadership Council on Legal Diversity Fellowship Program

The Leadership Council on Legal Diversity—a group comprising leaders from 100 law firms and 65 corporations—is set to launch a new mentorship program to identify promising young attorneys and put them in a position to learn from law firm managing partners and general counsel from major companies.

The hope is that the group’s Fellows Program will help diversify the legal profession by improving leadership and networking skills among young attorneys who are committed to promoting diversity within their firms and companies.

Among those planning on teaching for portions of the program are Coca-Cola Co. general counsel Geoffrey Kelley and Macy's Inc. general counsel Dennis Broderick. The program will include three in-person conferences over the course of the year, with fellows also participating in virtual training sessions that cover such topics as the expectations that managing partners have for attorneys and how to pitch services to general counsel. Managing partners and general counsel will also talk to the fellows about personal experiences and setbacks, while fellows will be paired with a “coach” from the council to work on a project for the year.

A new group of 100 fellows will be selected each year.

—Denise Zamore, United Healthcare Group

April 28, 2011

Supreme Court Releases Important Decision in Arbitration Case

The Supreme Court, in a 5–3 ruling, reversed and remanded the Second Circuit Court of Appeal's ruling that an arbitral tribunal had not exceeded its powers in finding that an arbitration clause allowed for class arbitration. At issue was whether an arbitration provision in a standardized and specialized shipping contract allowed for class arbitration for a group of shipping customers, despite that the arbitration clause was silent as to class arbitration. The Court found that the arbitrators should have looked to controlling federal law rather than their own policy concerns, and that the law in this case did not allow for class arbitration, especially where the arbitration agreement was silent on the issue. Accordingly, the Court agreed with the Southern District of New York's ruling, which vacated the arbitral decision under Section 10(a)(4) of the Federal Arbitration Act. Stolt-Nielsen S.A., et al. v. Animalfeeds Int’l Corp., No. 08-1198.

—Charlie Whorton, Esq., Rivero Mestre LLP, Miami, FL

March 4, 2011

White House Issues Report on Status of Women in America

March is Women's History Month, and as part of the events honoring Women's History Month, on March 1 the White House released a detailed evaluation of the status of women in America, titled "Women in America: Indicators of Social and Economic Well-Being." This is the first in-depth, comprehensive report on women prepared by the federal government in over 50 years. The report focuses on five areas: people; families and income; education; employment; health; and crime and violence. Several federal agencies collaborated to compile the report, which was prepared to provide facts to a broad range of interested parties. Among the developments highlighted by the report are the fact that: (1) women now outpace men in college attendance; (2) despite gains in employment, women continue to earn about 75 percent of what their male counterparts earn; (3) women, especially women of color, are more likely to be in poverty than men; (4) while women live longer than men, they are more likely to face certain health problems; and (5) women are less likely than in the past to be the victims of certain violent crimes.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, Illinois

February 14, 2011

"Crashworthiness Doctrine" Has Been Extended

A recent ruling by the Seventh Circuit Court of Appeals has extended the ‘crashworthiness doctrine’ to riding lawnmowers. Donald Malen v. MTD Products, Inc. and Home Depot U.S.A., Inc. 08-3855 (Nov 19th 2010), 7th Cir. In reversing and remanding the ruling of the district court, which granted summary judgment for the defendants, Judge Williams rejected the assertion that the operators own actions were the sole proximate cause of his injury. Rather, the court found that a jury could find that the mower was both defective and the proximate cause of Malen’s injury.

In 2004, Donald Malen slipped while getting off his reconditioned riding lawn mower and severely injured his foot on the rotating blade, having raised the cutting deck and removed his foot from the pedal that engaged the blade. He and his wife sued the manufacturer and seller, claiming that the mower was defective in design and construction. The district court granted summary judgment for the defendants, because undisputed evidence established that Malen’s own actions were the sole proximate cause of his injury.

The mower was designed with a safety interlock system. One component of that system was an operator presence control (OPC), a device that kills the engine if the operator rises from the seat without first disengaging the cutting blade and setting the parking brake. A second component was the “no cut in reverse” switch (NCR), which kills the engine if the operator shifts into reverse without first disengaging the blade. It is undisputed that neither the OPC nor the NCR functioned when the accident occurred.

The Malens contended that the lawnmower manufactured by MTD Products and sold by Home Depot was negligently manufactured and unreasonably dangerous because its OPC was not connected and thus inoperable. They also contended that the mower was negligently designed because MTD Products had shunned a “fail safe” system that would have made the cutting blade unusable even without the OPC connected. According to the district court, since Malen was at fault, it was unnecessary to decide whether the mower was defective.

The court, made clear that manufacturers and sellers are strictly liable for injuries caused by unreasonably dangerous products unless an unforeseen alteration by a third party introduced the unsafe condition. The court found that the plaintiffs had adduced more than sufficient evidence to show Malen’s mower was unreasonably dangerous and that the mower was further defective in design because its OPC was not “fail safe.” On both questions, there was, according to Judge Williams, sufficient evidence for a jury to find for the plaintiffs.

Even if the defendants are correct that Malen was himself negligent and that it mattered, accidents are natural, foreseeable consequences of using certain products. This principle is known as the "crashworthiness doctrine" (or the “enhanced injury” or “second collision” doctrine), which Illinois has adopted. Applicable to strict liability and negligence, the premise underlying the crashworthiness doctrine is that some products, although not made for certain purposes—such as accidents—should nevertheless be reasonably designed to minimize the injury-producing effect of an accident. This includes a failure to provide the consumer with reasonable protection under the circumstances surrounding a particular accident. A reasonably foreseeable intervening act, such as an accident, does not relieve the defendant of liability as defendant was required to foresee certain accidents in the use of the mower.

Judge Williams noted that the Restatement (Third) of Torts recognizes that the crashworthiness doctrine applies outside the automobile context, and other jurisdictions have variously applied it to motorcycles, airplanes, boat engines, fork lifts, tractors, and indeed mowers. In extending the doctrine to mowers in this jurisdiction, she explained accidents on riding mowers are foreseeable just as accidents on roadways are, and while Malen may not have been a model user, such consideration was not a concern of the crashworthiness doctrine. Therefore Malen’s disregard of an explicit warning was not dispositive to that doctrine, as adopted in Illinois. In reversing and remanding, the court made clear a jury could still conclude that the mower was unreasonably dangerous and that the absence of functional safety mechanisms was the proximate cause of Malen’s injury.

—Karen Munoz, Dolan Law Offices, P.C., Chicago, IL

February 10, 2011

Supreme Court Hears Argument on Arizona Immigration Law Employer Sanctions Case

On December 8, 2010, the Supreme Court heard oral argument in the matter of Chamber of Commerce v. Whiting (09-115), a case centered on the hot-button topic of Arizona's immigration laws. In the case, businesses and civil liberties groups (backed by the Obama administration) are challenging an Arizona law signed in 2007 that threatens to revoke the licenses of businesses that knowingly hire undocumented workers. The law has only been used three times in the past three years and was previously upheld by the Ninth Circuit Court of Appeals in San Francisco. While immigration law is generally a focus of the federal government, Arizona has argued that the state has been forced to act due to the federal government's failure to meaningful enforce immigration law. A decision is expected by summer 2011.

—Joseph Hanna, Goldberg and Segalla, Buffalo, New York

February 10, 2011

New Census Data Reveals Substantial Progress in Desegregation

Racial segregation levels in the United States have dropped to some of the lowest levels in more than a century, according to census numbers released on December 14, 2010. The Census Bureau's American Community Survey (ACS) is based on a survey of over 10 million Americans and is the largest demographic survey conducted in the country. Neighborhood segregation levels dropped in 70 percent of the 100 largest U.S. metro areas. Several Southern and Western cities showed a noticeable trend toward integration in the past five years, while parts of the Northeast and Midwest remain the most segregated. These changing numbers will play heavily into the upcoming congressional redistricting battles.

—Joseph Hanna, Goldberg and Segalla, Buffalo, New York

February 10, 2011

Fourth Amendment Protects Privacy in Email Stored with Internet Service Provider

In United States v. Warshak, al. Case Nos. 08-3997/4085/4087/4212/4429; 09-3176 (Dec. 14, 2010), a case with broad implications for an increasingly digital world, the Sixth Circuit Court of Appeals held that the Fourth Amendment applies to emails stored by individuals on the servers of Internet service providers and that government agents may not search email contents without a valid warrant. This case creates an important precedent in an area of law that had previously been somewhat unsettled and holds that the provisions of the Stored Communications Act authorizing government agents to subpoena emails from Internet service providers are unconstitutional. The Sixth Circuit determined that email maintained on the servers of Internet services providers is akin to regular mail held by the post office or phone calls routed through the phone company and is not similar to records maintained by a bank (which may be searched without a warrant). Importantly, pursuant to the Supreme Court’s recent decision in Pearson v. Callahan, 129 S. Ct. 808 (2009), the Warshak court declined to apply the exclusionary rule to the emails, finding that the government agents had relied on the Stored Communications Act in good faith, thus avoiding the exclusionary remedy.

—Brian Josias, Cotsirilos, Tighe & Streicker, Chicago, Illinois.

February 10, 2011

Even with Repeal Bill Signed, Legal Battles over "Don't Ask, Don't Tell" Continue

While President Obama signed the "Don't Ask, Don't Tell" Repeal Bill into law on December 22, 2010, the legal challenges surrounding the policy are not yet over. The Justice Department is now seeking a stay of the long-standing federal lawsuit filed over the policy by Log Cabin Republicans (LCRs). The Justice Department argues that the repeal bill establishes a process for ending the DADT policy. However, under the bill, the repeal will not go into effect until 60 days after the certification process is complete. LCRs argue that until the repeal takes effect, service members are still in danger of falling victim to the policy and will continue their appeal to have the stay current blocking a worldwide injunction against enforcement of the DADT policy lifted.

—Joseph Hanna, Goldberg and Segalla, Buffalo, New York

November 3, 2010

Native American Farmers Celebrate $760 Million Settlement

Native American farmers and ranchers and the U.S. Department of Agriculture (USDA) announced an historic agreement to settle a nationwide class action lawsuit (Keepseagle v. Vilsack) that alleged discrimination in USDA’s farm loan program dating back to 1981.

The agreement brings to an end 11 years of litigation, and marks the beginning of what is expected to be a new partnership between USDA and the Native American community.

Under the agreement, which was unveiled in the U.S. District Court in Washington, D.C. before Judge Emmet Sullivan, USDA will pay $680 million in damages to thousands of Native American farmers and ranchers and forgive up to $80 million worth of outstanding farm loan debt.

The settlement also provides for a host of initiatives that will improve USDA’s farm loan services for Native Americans.

November 1, 2010

Judge Orders Firm to Add Diversity to Case

A federal judge is taking steps to promote diversity in his Manhattan courtroom. Judge Harold Baer of the United States District Court for the Southern District of New York recently issued an order in a class action suit (In re: Gildan Activewear Inc. Securities Litigation; 08-cv-5048) directing the two co-lead firms serving as plaintiffs' counsel to assign at least one woman and one minority to the case in order to reflect the diversity of class members they are representing.

Call for Diversity in the Profession

Nearly 100 Chief Legal Officers / General Counsel have signed on to Sara Lee General Counsel Roderick Palmore’s “Call to Action: Diversity in the Legal Profession,” which states:

As Chief Legal Officers, we hereby reaffirm our commitment to diversity in the legal profession. Our action is based on the need to enhance opportunity in the legal profession and our recognition that the legal and business interests of our clients require legal representation that reflects the diversity of our employees, customers and the communities where we do business. In furtherance of this renewed commitment, this is intended to be a Call to Action for the profession generally, in particular for our law departments, and for the law firms with which our companies do business.

In an effort to realize a truly diverse profession and to promote diversity in law firms, we commit to taking action consistent with the referenced Call to Action. To that end, we pledge that we will make decisions regarding which law firms represent our companies based in significant part on the diversity performance of the firms. We intend to look for opportunities for firms we regularly use which positively distinguish themselves in this area. We further intend to end or limit our relationships with firms whose performance consistently evidences a lack of meaningful interest in being diverse.