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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Thursday, July 29, 2010

Against the Wanton Killing of Trees

In Lawyers USA Online, Jim Calloway of theOklahoma Bar Association Management Assistance Program makes a strong case that every single lawyer needs to switch from paper files to digital files. The only counter-argument I don't see his answering is that paper files cannot crash.

Wednesday, July 28, 2010

Pre-Certiorari Amicus Briefs Increasingly Important in Cases SCOTUS Takes

Tony Mauro and Marcia Coyle of the National Law Journal point out the increasing role of pre-certiorari amicus briefs to get argument in the United States Supreme Court.

Friday, July 23, 2010

Who's the Boss in a Criminal Defense Representation?

The Sixth Amendment to the United States Constitution as a practical matter guarantees criminal defendants the right to be represented by lawyers at their trials. In Faretta in Faretta v. California the defendant asked not to use a lawyer even though the trial judge insisted on one. The U.S. Supreme Court found the logic of this compelling. Then comes the kind of case exemplified by Scott Panetti who represented himself ramblingly while wearing a purple cowboy suit, frustrated because his trial subpoenas for the late John F. Kennedy, the pope, Anne Bancroft, and Jesus did not get his witnesses to court. University of Georgia law professor Erica J. Hashimoto argues in the latest issue of the Boston University Law Review-- the third of volume 90-- that proposed reforms of the rule in Faretta shouldn't take control of the defense from the defendant and give it all to the lawyer in the case.

Tuesday, July 20, 2010

SCOTUS Oral Argument Analysis

A statistical analysis of oral argument patterns as to SCOTUS justices is here.

Friday, July 16, 2010

Despite Border Search Exception, Warrant Needed for Laptop Analysis

United States District Court Judge Jeffrey S. White
granted a motion to suppress the search of a laptop, which was seized at a U.S. airport from someone returning on an international flight. This case signals what courts-- especially federal courts-- will hold to be reasonable expectations of privacy in the content of a computer brought into the United States.

One of the exceptions to the duty of government agents to get a warrant supported by probable cause before searching for evidence of crime is that of a border search. An entrant to a country cannot reasonably expect to have the right to sneak contraband in. Still, should customs be able on their own to examine all the contents of an entrant's laptop?

On January 27, 2009, customs randomly chose Hanson for a secondary baggage examination. He sweated, stuttered and asked why his luggage was being inspected. They found a bag of condoms and a bottle filled with pills that Hanson said were for male enhancement. Hanson said that he had been teaching English in Korea and that some of his students were as young as five years old. The customs officer looked at the images on the computer, and found one of a mud-covered, unclothed, post-pubescent, minor girl smiling into the camera, her genitals exposed. The officer seized the computer and sent it to a computer lab.

That lab examined it on February 5. Customs examined the lab report February 13, and decided to seize the computer then. It was examined again that June where it was demonstrated to contain more than a 1,000 images of kiddie porn. Judge White ruled that the January and February actions were unobjectionable; the June examination required a warrant.

A border search and a reasonable extension of it can provide the probable cause to support a warrant to search and seize property. The content of a person's laptop like this is protected.

This case is about six weeks old. I found out about it for the first time from Lawyers USA yesterday

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Thursday, July 15, 2010

It's Clever and It's True

Law "Practice Tips from Professional Wrestling" is here.

Wednesday, July 7, 2010

Never Trusted that Rat Anyway

For some forms of pest control, the best professional for a job is a lawyer. Hat tip to Courthouse News Service.

As an Illness Subsides, the Remedy Is Less Necessary

Sam Glover has an interesting post in the Lawyerist on The Elements of Style by William Strunk, Jr. and E.B. White, great essayist of the mid-twentieth century (Can't help putting in a plug for "On a Florida Key"-- if there's a better essay in English, it doesn't jump to mind.). He was also the author of Charlotte's Web.
Strunk and White is starting to seem dated. One reason is that White was not a grammarian by profession. What I learned from the Elements of Style was shown to me to be wrong by Bryan Garner himself. The second reason is that White carried the day in his struggles against the bad writing of his time. It reminds me of the history of the doctrine of universal salvation. Universalism was at one time the ninth largest denomination in America, but it shriveled as its competitors learned that being hateful of and hopeless for the grand majority of the human race was bad for their business (When was the last time you heard a hellfire sermon?). The doctrine wasn't beaten- the competitors tacitly adopted it.
So it is with Strunk and White. Even bad writers today feel uncomfortable with sentences that begin "There is" or a lengthy, chewy mouthful of a sentence.
Strunk's instruction may have been enough for White. White was superlatively talented, even a genius-- maybe he didn't need any more guidance (Though I note that he was married to a brilliant editor.) For the rest of us, here at the beginning of the 21st Century, I recommend John R. Trimble's Writing with Style after decades of working with this stuff, its ideas forcibly knocked me upside the head. Before, I saw through a glass darkly, now I'm face to face with why and how White said what he did.

Tuesday, July 6, 2010

Nineteenth Edition of Blue Book Out

The Harvard Blue Book, indispensible aid to citation form, has attained its 19th edition. Get it or get the information in it before your next appellate proceeding.

Friday, July 2, 2010

Hard Times for Appellate Lawyers

From the Texas Lawyer: "There are but two types of error in Texas appellate courts: waived and
harmless."- Chuck Lanehart

A Court Can Come to a Conclusion Inconsistent with the Reasoning of a Majority

This fascinating post talks about how in a multiple opinion case, the judgment in the case may contradict the reasoning of a majority of the justices. Hat tip to the Akin Gump Strauss & Feld LLP SCOTUSblog.

Does Your Trial Record Preserve Your Evidence Exclusion Error?

Continuing to reflect on whether or not you should do your trial client's own appeal, there's something extra to think about if you want to complain about evidence's being excluded at trial. Most of the time, if that's the kind of error you want to bring forward, an offer of proof must be in the record.
Here's the situation: trial counsel offers some evidence; the opponent objects and is sustained by the judge. Generally, if the first lawyer wants to complain on appeal about the exclusion, that lawyer must, outside the presence of the jury, put what the testimony would be on the record. Usually this is done by simply asking the questions and taking the testimony as if the objection had not been made. If the objected-to evidence is simple, the testimony may be offered, if the trial judge allows it, as a narrative, though this is disfavored. After the evidence is presented in the offer of proof, opposing counsel may withdraw the objection or the trial judge might change the ruling sustaining the objection. The offer doesn't have to made right away, but it does have to be made before the case is submitted to the fact-finder.
Evidence exclusion is not a very strong objection, because the standard of review is whether the ruling is in the sound discretion of the court. We'll talk about this more in subsequent posts.