Posts Tagged ‘procedure’

Vatican as defendant

A couple of ambitious lawyers have managed to sue the Vatican itself in pursuit of the Catholic Church’s priest-abuse scandals, but it isn’t easy:

…even if a process server could get past the Swiss guards, handing the pope a copy of a lawsuit doesn’t count as service.

Because the Vatican is a foreign country, all documents must be translated into its official language.

In this case, that means Latin. And there’s still the major obstacle to get around of the Foreign Sovereign Immunities Act, which bars most suits against foreign governments. (Ashbel S. Green, “Suit reaches new heights: the Vatican”, The Oregonian, Dec. 11). See PoL Mar. 10. More on church scandals: this site Sept. 16, 2003, Jul. 11, 2004; Point of Law Aug. 10, Sept. 29, 2004; Aug. 28, Aug. 31, Sept. 1, 2005.

House again passes LARA

By a vote of 228-184 yesterday, mostly on partisan lines, the House of Representatives approved H.R. 420, the proposed Lawsuit Abuse Reduction Act (LARA). (“Tort Reform Legislation Passes House, Moves to Senate”, Insurance Journal, Oct. 28). The vote margin was about the same as last year (see Jun. 21 and Sept. 15, 2004), and, as with last year, Senate passage this session is considered a long shot. For more on the bill’s sound overall rationale, as well as its weaker aspects, see our earlier coverage. More: Stop the BS has posted a copy of the bill (Oct. 29).

Cameras in the courtroom

Justice Scalia isn’t a fan:

“We don’t want to become entertainment,” he said. “I think there’s something sick about making entertainment out of real people’s legal problems. I don’t like it in the lower courts, and I don’t particularly like it in the Supreme Court.”

(“Scalia Says Confirmation Too Politicized”, AP/Washington Post, Oct. 10). KipEsquire takes a different view (Oct. 11).

Book review in today’s WSJ

I’m in today’s Wall Street Journal (sub – $) with a generally favorable review of Sadakat Kadri’s new book “The Trial: A History from Socrates to O.J. Simpson“. A few excerpts from the review:

By 1880 the criminal trial as an institution had become standardized around the West to the point that readers on many continents found little that was unfamiliar in Dostoevsky’s account of the murder proceedings against Dmitri Karamazov. The lawyers popping up with objections, the witness box and table of evidentiary exhibits, the sensation-seekers filling the gallery — all were as common to the courthouses of San Francisco or Paris as to those of late-czarist Russia. Go back a few centuries to premodern Europe, though, and the forms of justice can seem to our eyes indescribably strange: trial by ordeal, by combat or by compurgation (the collecting of oaths from supporters) and so forth.

And yet the march of progress is not always quite so apparent. We may smile at the premodern practice of putting a pig or haystack on trial for having caused harm to a human being, yet our contemporary law abounds in forfeiture and pure-food cases with headings like United States v. 900 Cases of Peaches (1975) and United States v. One 1967 Pontiac Bonneville Convertible (1973)….

The continuities between past and present are many. Battles over jury selection, so typical today in big trials, propel the plot of Burnt Njal, a medieval Icelandic saga involving arson-murder and bloody retribution. The tendentious interpretation of ambiguous marks on witnesses’ bodies — a hideous aspect of the witch hysteria of the 16th and 17th centuries — reappears in the child-abuse prosecutions of our own era. Denunciation boxes, into which citizens dropped accusing notes in Inquisition times, popped up in police stations across Russia in the 1930s. Hype-fraught celebrity trials? They date back pretty much forever and serve useful purposes, such as calling attention to social problems that would never stir public debate if left abstract….Regarding the emotionally manipulative style of some courtroom champions, Mr. Kadri finds plenty of precedent. He quotes the 1897 Tennessee Supreme Court, which said that “tears have always been considered legitimate arguments before a jury. Indeed, if counsel has them at his command, it may be seriously questioned whether it is not his professional duty to shed them whenever proper occasion arises.”

As for glittering but empty turns of courtroom rhetoric, Johnnie Cochran was just building on a tradition that goes back to Shakespeare’s time. “Elizabethan schoolboys,” Mr. Kadri writes, “were commonly taught adoxography, the art of eruditely praising worthless things….The first English treatise on the subject appeared in 1593 and contained essays celebrating deformity, ugliness, poverty, blindness, drunkenness, sterility, and stupidity. Its preface claimed that it would be particularly useful to lawyers.”

Read the whole thing here if you are a subscriber, or go out and buy a copy of the Journal. Incidentally, the Journal’s editors had to drop a couple of paragraphs of my original review draft for space reasons. Here they are:

* On the centuries-old practice of digging up the rotting remains of deceased persons to make them stand trial on criminal charges, a judge named Pierre Ayrault observed in 1591 that after all it is natural to regard the reputations of the dead as of continuing interest — wouldn’t we want to free a wrongly accused decedent from suspicion? That still didn’t explain why it would be needful to exhume a corpse, so Ayrault suggested a painting of the accused be hung in court instead.

* On the differences, some apparent and some real, between American and British justice: “Plea bargaining has never been given legal recognition in England. Barristers nevertheless haggle over pleas and judges give ‘indications’ of their likely sentences almost every day in almost every court of the land.” On the other hand, some differences are very real indeed, as with British judges’ power to summarize for jurors the weight of evidence in a case: “The summing-up invariably pays lip service to the principle of jury independence — typically, by ending a devastating criticism with the observation, ‘It is, of course, entirely a matter for you.'”

“Law and lawyers post-Katrina”

Among its other horrific effects, the hurricane is going to pose a perhaps unprecedented challenge to the resilience of a state legal system, by inundating or otherwise destroying the records of many of Louisiana’s busiest courts, law firms and other participants in the legal process. Prof. Bainbridge has details (Aug. 31). More: Texas Lawyer reports that the administrators of the Fifth Circuit courthouse in New Orleans prudently had staffers bring some files up to the second floor as the storm approached.

Ted’s habeas debate

Ted’s debate with lawprof David Bruck (Washington & Lee) on federal habeas corpus reform at Legal Affairs has now wrapped up (for more on the bill itself, see Jul. 17). Not only is it highly illuminating and a great read (Ted: “We’re not talking about a sacrosanct legacy for which General Grant fought; we’re debating a malleable judicial rule that’s younger than two of the stars of ‘Desperate Housewives.'”) but (for readers who think they’re only interested in the civil and not the criminal side of the courtroom) Ted discusses in passing the general paucity of means by which miscarriages of justice in state court litigation can be reviewed by federal courts (see his Aug. 2 post).

N.Y.: no cameras in courtroom

The interests of a fair trial come first, rules New York’s highest court. The New York State Defenders Association, for one, had weighed in with an amicus brief in favor of the no-camera policy. The ruling “was a total loss for Court TV”, which “had attempted to achieve through litigation what its lobbyists at Ostroff, Hiffa & Associates of Albany could not achieve legislatively. Records maintained by the state Lobbying Commission indicate Court TV has spent next to nothing on lobbying the last few years as its attorney, David Boies of Boies, Schiller & Flexner in Armonk, N.Y., pursued the legal case.” (John Caher, In Loss for Court TV, N.Y. Judges Continue Ban on Cameras in Courts, New York Law Journal, Jun. 17).

Coleman v. Morgan Stanley

Financier Ronald Perelman wins $604 million, with a request for punitive damages still to come, against Morgan Stanley on claims that the Wall Street firm defrauded him seven years ago when he sold camping equipment maker Coleman to Sunbeam Corp., a Morgan client. (Bloomberg/New York Times/AP). The unexpectedly large verdict came after the Florida state judge presiding over the case blasted Morgan and its law firm for not responding in a forthcoming way to requests for discovery of electronically stored records, and instructed the jury to infer that the withheld documents demonstrated fraud. Blog commentary: Monica Bay, Francis Pileggi, Lisa Stone (and earlier), Litigation Support Guy (and again), Tom Kirkendall (and earlier), Really Think. More: jury votes $850 million in punitive damages (Jill Barton, “Perelman Wins $1.4 Billion Total in Suit Against Morgan Stanley”, AP/, May 19); Tom Kirkendall comments (May 18). Updates Dec. 17: Morgan Stanley files appeal; Mar. 22, 2007: appeals court overturns verdict.

Apology privilege

Last year (see May 19) Jack Henneman of TigerHawk discussed the “apology privilege” for doctors that is under debate in a number of states (which would shield physicians from having apologies to patients used as evidence against them in court), and suggested that it might make sense to apply the principle to everyone, not just doctors. Now he’s got some further thoughts and a concrete proposal (Apr. 9).

The sailor’s doxy

Suits against cruise lines by passengers who get sick on board are bringing the courts quite a bit of business at the moment, but the lawsuit against Holland America Line by 81-year-old Bernice Oltman and her son, Jack Oltman, goes further. “The Oltmans said they suffered from a gastrointestinal illness, and also saw crew members eating directly from buffet platters. ‘During the scheduled stop in Ecuador, Jack Oltman noticed some crew members openly associating with prostitutes,’ the lawsuit said.” (There was an overflowed toilet, too.) “The Oltmans said they expected to be compensated by Holland America for pain and suffering, emotional distress, loss of earnings, legal fees and medical expenses, including a colonoscopy and hemorrhoid surgery, the lawsuit said.” (“Cruise Line Sued for ‘Unsanitary’ Cruise”, Reuters, Apr. 1). “Scandalous” pleadings, as described in legal authorities such as Federal Rule of Civil Procedure 12, include those which serve to heap disrepute on the opponent without advancing any colorable claim; presumably the Oltmans’ attorney is prepared to demonstrate a convincing link between the alleged tarts and the alleged torts.