f/k/a archives . . . real opinions & real haiku

January 12, 2004

A Revealing Focus on Minnesota’s Anti-Bias MCLE Fight

Filed under: pre-06-2006 — David Giacalone @ 8:28 pm


The National Law Journal has an article today on the fight in Minnesota over mandtory anti-bias CLE courses, which we’ve been discussing.  (NLJ, A battle over anti-bias CLE courses,” 01-12-04, subscription required)  Opponent Scott Johnson at Powerline, a/k/a The Big Trunk, has posted the article on his weblog, here.  It’s worth a look.   Big Trunk says:


“The story is not illuminating, but it is probably useful to have the national press put a spotlight on the case, and I believe there will be additional attention focused on the story in the next week or two when Fox News broadcasts a segment on it.”

In reading the article, I was struck by one strange argument presented by Peter Swanson, corporate counsel at TCF National Bank in Minneapolis, who submitted an amicus brief in support of Elliot Rothenberg’s petition against the Rule.   Swanson points out that, unlike Minnesota, California allows self-study to fulfill its anti-bias requirement and therefore “does not compel attorneys to reveal their ideology by choosing a particular course.” (emphasis added)  What a weird, unfortunate notion:  it assumes that an attorney would only choose a course whose title/syllabus coincided with his or her existing beliefs on the issue of bias.   It also assumes that we each have an “ideology” about bias (or anti-bias). 

 

Question Mark  What ideology would I be revealing if I signed up for “Understanding Islam”?  If I went to “Bias, What Bias?”, is there a presumption (rebuttable?) that I believe there is no bias?  Just who is doing the presuming and taking notice and why the heck would I care?  

 

Whatever happened to intellectual or social curiosity?  To having the courage of your own convictions or being open to the ideas or experiences of others?  To taking a devil’s advocate posture, eager to ask the presenters tough questions?  I mean, they are lawyers and adults, right?  Yet, they’re worried about being “indoctrinated” and “revealing their ideology”.  As I might have said in my rebel days: Reveal This!    Tonight, my main reaction is: Kids, Stop Whining!

Ventura County Court Informs All Parties of Alternate Ways to Resolve Family Law Cases

Filed under: pre-06-2006 — David Giacalone @ 1:57 am

Light Bulb 

good idea!

 

According to an L.A. Times article (“Ventura County Offers Alternatives to Nasty Divorces,” January 2, 2004, free reg. req’d), all couples filing for divorce and other family court matters will now receive a letter providing href=”http://courts.countyofventura.org/adr.pdf”>information about alternatives, such as court-sponsored workshops, self-help centers, mediation, and unbundled legal services, etc. (as reported at SelfHelpSupport.com)

 

Because it is an excellent example of how to create informed consumers, while helping to make the justice system people-friendly and oriented to the needs of the public rather than the bench and bar, I am presenting the entire Letter here (a Spanish version is on page 2 of the linked pdf. file).


ALTERNATIVE METHODS OF RESOLVING DISPUTES IN FAMILY LAW CASES


        The business of the Ventura County Superior Court, like all court systems, is “dispute resolution”, which includes those disputes which arise in actions for Dissolution of Marriage, to Establish a Parental Relationship, for Civil Domestic Violence Restraining Orders, and other Family Law cases. These disputes may center upon the custody and visitation of children; the division, ownership, and use of personal or real property; and financial support.


        As you begin the process of dealing with these kinds of matters in a formal lawsuit, you should be aware that the court system is a very complex process which is founded on the “adversarial” nature of litigation. While this process works well for many kinds of disputes, it may not always be the best or easiest or most comfortable way to resolve a very personal dispute which involves you, your children, your property, and your finances.


        Over the past decade, a number of effective, alternative methods of resolving disputes in Family Law matters have arisen and, undoubtedly, other methods will emerge in the future. While it would be improper to recommend a specific group or individual, the Court and the Bar Association support the establishment of these new approaches and sincerely endorse the following alternatives to traditional litigation. Therefore, we invite you to consider the following as potential methods of resolving your dispute in a way which may make you more comfortable with the process and, therefore, more satisfied with the outcome.


 



* In the COLLABORATIVE FAMILY LAW process, experienced family lawyers, specially trained in negotiations and conflict resolution, represent each party, but only for purpose of helping them to settle the case. You, the other party, and your lawyers agree in writing not to go to court for a trial or hearing. As such, the collaborative lawyers’ only goal is to help you and the other party settle your case in a way that is mutually satisfactory to both sides.


* The FAMILY LAW FACILITATOR of the Ventura County Superior Court is a “self help center” which provides litigants with information, forms, and instructions on how to complete their case without going to court. Workshops are available for help in preparing or responding to the Dissolution or Legal Separation action or an Order to Show Cause and for completing the Final Judgment. The hours of the center and the schedule for the classes are available at the Clerk’s Office or on the Court’s website.


* Many attorneys offer “LIMITED SCOPE” or “UNBUNDLED” SERVICES to parties who can do some of the work on their own but need an attorney for a limited purpose, such as writing up an agreement or appearing in court, if necessary. You and the attorney will sign a paper stating exactly what the attorney will do for you. The attorney will only do the agreed upon work and you will only be billed for those services. When the task is over, you will sign another paper releasing the attorney from the case.


* Together, the parties agree to use a NEUTRAL ARBITRATOR, who is selected and empowered by the parties to decide the dispute at arranged times and places in a private setting which is not open to the public and which may be far less formal than a public courtroom.


* Disputes can be resolved by PRIVATE MEDIATION outside of court. Mediation is non-adversarial. You and the other party will work together with an attorney, counselor, or other specially trained mediator to develop a written agreement resolving all aspects of the case. Professional counselors in the mental health field can also provide Mediation or special expertise for child custody and visitation issues or to address the parenting problems of and parenting solutions for separated and separating families.


More information about these and other alternatives is available in the following locations [omitted].




Ventura County Superior Ct                   Ventura County Bar Association


There is no doubt that thousands of families given this array of alternatives to litigation can learn to resolve their disputes in a manner that reduces anger, stress, uncertainties and expenses, and that allows each member of the family to heal and adjust more successfully, and to avoid disputes in the future.    Bar associations, legislatures and judicial systems must cooperate to make this array of services and options available in communities across the nation.   

Ventura County Court Informs All Parties of Alternate Ways to Resolve Family Law Cases

Filed under: pre-06-2006 — David Giacalone @ 1:57 am

Light Bulb 

good idea!

 

According to an L.A. Times article (“Ventura County Offers Alternatives to Nasty Divorces,” January 2, 2004, free reg. req’d), all couples filing for divorce and other family court matters will now receive a letter providing href=”http://courts.countyofventura.org/adr.pdf”>information about alternatives, such as court-sponsored workshops, self-help centers, mediation, and unbundled legal services, etc. (as reported at SelfHelpSupport.com)

 

Because it is an excellent example of how to create informed consumers, while helping to make the justice system people-friendly and oriented to the needs of the public rather than the bench and bar, I am presenting the entire Letter here (a Spanish version is on page 2 of the linked pdf. file).


ALTERNATIVE METHODS OF RESOLVING DISPUTES IN FAMILY LAW CASES


        The business of the Ventura County Superior Court, like all court systems, is “dispute resolution”, which includes those disputes which arise in actions for Dissolution of Marriage, to Establish a Parental Relationship, for Civil Domestic Violence Restraining Orders, and other Family Law cases. These disputes may center upon the custody and visitation of children; the division, ownership, and use of personal or real property; and financial support.


        As you begin the process of dealing with these kinds of matters in a formal lawsuit, you should be aware that the court system is a very complex process which is founded on the “adversarial” nature of litigation. While this process works well for many kinds of disputes, it may not always be the best or easiest or most comfortable way to resolve a very personal dispute which involves you, your children, your property, and your finances.


        Over the past decade, a number of effective, alternative methods of resolving disputes in Family Law matters have arisen and, undoubtedly, other methods will emerge in the future. While it would be improper to recommend a specific group or individual, the Court and the Bar Association support the establishment of these new approaches and sincerely endorse the following alternatives to traditional litigation. Therefore, we invite you to consider the following as potential methods of resolving your dispute in a way which may make you more comfortable with the process and, therefore, more satisfied with the outcome.


 



* In the COLLABORATIVE FAMILY LAW process, experienced family lawyers, specially trained in negotiations and conflict resolution, represent each party, but only for purpose of helping them to settle the case. You, the other party, and your lawyers agree in writing not to go to court for a trial or hearing. As such, the collaborative lawyers’ only goal is to help you and the other party settle your case in a way that is mutually satisfactory to both sides.


* The FAMILY LAW FACILITATOR of the Ventura County Superior Court is a “self help center” which provides litigants with information, forms, and instructions on how to complete their case without going to court. Workshops are available for help in preparing or responding to the Dissolution or Legal Separation action or an Order to Show Cause and for completing the Final Judgment. The hours of the center and the schedule for the classes are available at the Clerk’s Office or on the Court’s website.


* Many attorneys offer “LIMITED SCOPE” or “UNBUNDLED” SERVICES to parties who can do some of the work on their own but need an attorney for a limited purpose, such as writing up an agreement or appearing in court, if necessary. You and the attorney will sign a paper stating exactly what the attorney will do for you. The attorney will only do the agreed upon work and you will only be billed for those services. When the task is over, you will sign another paper releasing the attorney from the case.


* Together, the parties agree to use a NEUTRAL ARBITRATOR, who is selected and empowered by the parties to decide the dispute at arranged times and places in a private setting which is not open to the public and which may be far less formal than a public courtroom.


* Disputes can be resolved by PRIVATE MEDIATION outside of court. Mediation is non-adversarial. You and the other party will work together with an attorney, counselor, or other specially trained mediator to develop a written agreement resolving all aspects of the case. Professional counselors in the mental health field can also provide Mediation or special expertise for child custody and visitation issues or to address the parenting problems of and parenting solutions for separated and separating families.


More information about these and other alternatives is available in the following locations [omitted].




Ventura County Superior Ct                   Ventura County Bar Association


There is no doubt that thousands of families given this array of alternatives to litigation can learn to resolve their disputes in a manner that reduces anger, stress, uncertainties and expenses, and that allows each member of the family to heal and adjust more successfully, and to avoid disputes in the future.    Bar associations, legislatures and judicial systems must cooperate to make this array of services and options available in communities across the nation.   

Giving Public Defenders a Bad Name

Filed under: pre-06-2006 — David Giacalone @ 12:34 am

Public defenders should be outraged by the decision described in this Las Vegas Sun article, which reversed a murder conviction and sentence of life without parole, due to ineffective counsel.   They should be outraged, not at the 9th Circuit appellate panel, but at their colleague who did such a shameful and irresponsible job of representing a 16-year old client in State of Nevada v. Davis(“Appeals Court Overturns Nevada killer’s conviction after 15 years,” by Scott Sonner, 01-08-04, as noted at Law.com., 01-12-04)

 

According to the article,”The defense lawyer did not interview any witnesses, and there is no indication the lawyer was aware that Davis had no adult criminal record, the court said. ”  The 9th Circuit panel also stated in its decision that:


  • “Defense counsel recommended Davis stipulate to a sentence of life with no possibility of parole because, as a black defendant accused of killing a white victim, he would likely receive the death penalty.” 
  • “Perhaps most egregiously, it appears from the record that defense counsel may not have been aware that Davis was only 16 years old at the time of the offense.”
  • “Defense hastily concluded after reviewing the police report and meeting with Davis for less than two hours, that a death sentence was the most likely possibility. Remarkably, it appears as though defense counsel undertook no investigation at all into Davis’ background, the victim’s background or the credibility of witnesses who could paint Davis in a sympathetic light.  It is extremely unlikely that a Nevada jury would have imposed the death penalty if the shooting were accidental and given that the victim was a drug addict killed while attempting to sell a stolen gun to Davis. Most significantly, it is extremely uncommon for 16-year-olds to receive the death penalty.”


The article notes that “The ruling does not name the defense lawyers who initially represented Davis.  Federal court records indicate county public defenders David Gibson [who was not immediately available for comment] and Stephen Dahl [now a judge, who said he did not directly handle Davis’ case] appeared in Clark County District Court on Davis’ behalf in 1988.”


My lack of criminal law experience keeps me silent in most criminal matters, as does the existence of webloggers who are expert in this area.   However, criminal defendants are also consumers of legal services and ethicalEsq can’t stifle itself this time.  I’ve often seen first hand, and have complained at this site, about the lack of diligence in Family Court matters — frequently by public defenders and assigned counsel.  But the idea of such lazy (immoral, actually) lawyering in a capital murder case even shocks skepticalEsq.  Heavy caseloads and other such excuses simply don’t begin to justify such a cavalier attitude toward the rights and well-being of a client.  I hope that bar counsel will look closely at the records of the attorneys and Office involved, to see if there was a pattern of such misconduct, and take strong disciplinary action, no matter how much time may have elapsed since the Davis case.

Giving Public Defenders a Bad Name

Filed under: pre-06-2006 — David Giacalone @ 12:34 am

Public defenders should be outraged by the decision described in this Las Vegas Sun article, which reversed a murder conviction and sentence of life without parole, due to ineffective counsel.   They should be outraged, not at the 9th Circuit appellate panel, but at their colleague who did such a shameful and irresponsible job of representing a 16-year old client in State of Nevada v. Davis(“Appeals Court Overturns Nevada killer’s conviction after 15 years,” by Scott Sonner, 01-08-04, as noted at Law.com., 01-12-04)

 

According to the article,”The defense lawyer did not interview any witnesses, and there is no indication the lawyer was aware that Davis had no adult criminal record, the court said. ”  The 9th Circuit panel also stated in its decision that:


  • “Defense counsel recommended Davis stipulate to a sentence of life with no possibility of parole because, as a black defendant accused of killing a white victim, he would likely receive the death penalty.” 
  • “Perhaps most egregiously, it appears from the record that defense counsel may not have been aware that Davis was only 16 years old at the time of the offense.”
  • “Defense hastily concluded after reviewing the police report and meeting with Davis for less than two hours, that a death sentence was the most likely possibility. Remarkably, it appears as though defense counsel undertook no investigation at all into Davis’ background, the victim’s background or the credibility of witnesses who could paint Davis in a sympathetic light.  It is extremely unlikely that a Nevada jury would have imposed the death penalty if the shooting were accidental and given that the victim was a drug addict killed while attempting to sell a stolen gun to Davis. Most significantly, it is extremely uncommon for 16-year-olds to receive the death penalty.”


The article notes that “The ruling does not name the defense lawyers who initially represented Davis.  Federal court records indicate county public defenders David Gibson [who was not immediately available for comment] and Stephen Dahl [now a judge, who said he did not directly handle Davis’ case] appeared in Clark County District Court on Davis’ behalf in 1988.”


My lack of criminal law experience keeps me silent in most criminal matters, as does the existence of webloggers who are expert in this area.   However, criminal defendants are also consumers of legal services and ethicalEsq can’t stifle itself this time.  I’ve often seen first hand, and have complained at this site, about the lack of diligence in Family Court matters — frequently by public defenders and assigned counsel.  But the idea of such lazy (immoral, actually) lawyering in a capital murder case even shocks skepticalEsq.  Heavy caseloads and other such excuses simply don’t begin to justify such a cavalier attitude toward the rights and well-being of a client.  I hope that bar counsel will look closely at the records of the attorneys and Office involved, to see if there was a pattern of such misconduct, and take strong disciplinary action, no matter how much time may have elapsed since the Davis case.

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