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When the Jury Does Not Show Up!

Here we are… it’s Monday! Is this how you felt this morning?

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At the beginning of every jury trial, I always start by thanking each jury member for taking the time to be there. I sometimes wonder if they think that it is just my memorized introduction. They would not think that, if they saw Sunday’s edition of the Richmond Times-Dispatch.

The article (here) is titled, “Jury duty no-shows in Chesterfield are causing trial delays – now the no-shows may get fined, too”.

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But here’s what the reporter is saying.  There were 373 summoned Chesterfield residents who initially failed to appear for jury duty in 2017 and January, 2018. Ultimately, 103 showed up to explain to the judge why they failed to report for jury duty. So far, the court has entered dollar judgments against 24 people. Some of those judgments are as high as $200.

I have previously blogged about having a trial continued in Chesapeake, Virginia, because they did not have enough jurors show up for court.  In Chesterfield, the no-shows are a cause of growing concern in Chesterfield. Court personnel reports having to sometimes scramble to find enough people to seat juries. One November jury trial was canceled because of no-shows.

In the article, Chesterfield Sheriff Karl Leonard was quoted as noting that, “It’s a huge problem. It really delays justice.” He also went on to discuss that some Chesterfield’s circuit judges have indicated they may want him to send deputies to pick up prospective jurors from their homes or workplaces, if enough don’t show up for jury duty.

The Henrico Chief Judge has indicated they they are fortunately not having the same issue. “We just have not had a problem,” said Chief Henrico Circuit Judge James Yoffy, “We do have a good system out here.” Petersburg Circuit Court recorded the third-highest number of juror absences in the region — 312.

Just a quick note on the process from our end. We set a court date that is sometimes almost a year away. Then, we make arrangements with witnesses and send out subpoenas. As to doctors who are going to testify, we subpoena them and then sometimes are also required to pay them a NON-REFUNDABLE trial testimony retainer payment.

If it is a very busy doctor in a specialized area of medicine, that retainer could be $5000-$10,000. Getting on their schedules and then paying large retainers to doctors is expected. Then… you truly hope that all scheduling will work and that everyone will show up, so the trial can go forward. Delay is normally good for the defense because it means that the defendant can put off responsibility for the harms, for a little longer.

Unfortunately, if a trial is continued, it’s not just a matter of showing up the next day. Those days are already pre-scheduled.  It’s once again trying to get back on the Court’s docket. It usually means going downstairs to the Clerk’s office and hoping to get back on a little sooner than it originally took to schedule.

But… those non-refundable retainers to the doctors are usually gone. For the next court date, it takes more non-refundable retainers.

That’s why my beginning remarks to jurors are truly from a place of thankfulness! Even though this is how some might be thinking:

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And for pic o’ day…

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Justice in the Stadium Basement

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Plus, laughter is good!

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Ok… I know! That is a mean way to start the blog… if you happen to be a Cowboys fan. But it really does tie in to Our Blog today. I promise.

And by the way, the other day I was watching highlights on the NFL Network and heard the voice of Pat Summerall. It made me feel nostalgic. Kinda made me want to go to a store and “Tell them Pat Summerall sent me”.

I am sure there are some who have no idea who Pat Summerall was. Or why I would be wanting to go to a store and say “Tell them Pat Summerall sent me”. I might as well be writing about  meeting family at the airport gate or listening to an eight track tape. And yes, there was something called yellow page advertising. That went out right around the time CDs and cassette tapes were packed in storage. But I digress.

This is really about the Philadelphia Eagles and their old football stadium… and a courthouse in the basement.

Of course, there used to be funny pictures about Eagles fans that no longer apply. The glory of winning.

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But they are still funny. So back to our story about justice at the stadium.

We travel to Philadelphia, when they played at Vet stadium. As “legend goes”, Eagles fans were already known for getting out of hand. These were the same fans who had booed Santa Claus and bombarded him with snowballs in 1968. (Here) Of course, they are also the same fans who obviously thought that being excited about winning the Super Bowl meant that it was ok to overturn cars and set fires in the middle of the street. I have never felt like celebrating like that, but maybe it’s just me.

On a Monday Night Football game against the 49ers in 1998, there were approximately 60 fistfights in the stands. Management and ownership had tried to stop the craziness by stopping beer sales in the 4th quarter and providing more security. Nothing was working. It was time to try something new.

Ownership decided to install a courtroom and jail on the premises, in the basement of the stadium. The fans, even by Philadelphia standards, were getting out of hand. On the opening day of this new “justice in the basement”, 20 fans were “processed”.

The way it worked, fans who were breaking the law at the game were taken to Eagles Court to see a judge immediately. They were usually caught in the act of some kind of drunkenness fighting, and basically forced to a guilty plea that led to a fine, somewhere between $150-$300 and/or community service.

More serious crimes would lead to serious criminal charges and court dates. Because it was considered a real court with real justice and law, those who wished to plead not guilty or request a lawyer would also be assigned a court date at the courthouse.

As the story goes, the very first person brought before the judge because of drunkenness in public, went through the process of a hearing/trial. After the judge heard the evidence of the conduct, he asked the man if he had anything to say before he would render his finding and possible sentencing.

The man was clearly drunk and reportedly rocking back and forth. There was even a question about whether he would remember this hearing the next day.

But, he obviously heard the judge. He paused momentarily before answering. The judge asked again, “Sir? Is there anything you would like me to consider or something you want to say?”. The man leaned forward and all of a sudden blurted out, “Troy Aikman is a fa**ot“”. Of course, he said it without stars!

And that started “justice” at the stadium. No word on whether a judge, who was probably an Eagles fan, was influenced by the verbal attack on the Cowboys quarterback.

And finally, for pic o’ day, I am staying with the football theme. This was posted Zach Schwartz. He noticed that a Red Robin cake somehow looks like the coach, Rob Ryan:

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Hammer Meets Nail!

How about a Christmas picture to get Our Blog week started?

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When I received that… I laughed!

Here’s what we know on a Monday. No one wants to hear how someone’s fantasy football team did over the weekend, and no one wants to hear about how much money someone made in bitcoin. Right?  (Yes, I know. That was just random)

We want useful!!! Something that effects us. Thus, I will be a bit random now to get to our ending point.

So let me mention my weight loss idea. On Friday I decided to punish myself for gaining a couple of pounds. I know it sounds crazy, but stick with me.

Recently, I ordered some custom shirts from a men’s shirt company that is located in India. I sent them my sizes. When the shirts arrived, they all felt tight. I was stuck. Send them back and spend almost as much in shipping as I spent on the shirts? Give them away? Or, torture myself. I went with the torture weight loss program of shirt tightness.

With a sport coat on, you probably wouldn’t notice. Me? I felt the tightness all day. One piece of lettuce felt like too much food. I knew I needed to lose at least 3 pounds! It’s the little things. Like not just digging into the Christmas cookies that show up at our office. Which brings me to some poetry for the blog to make us wicked smart!

One of my favorite poems is For The Want of a Nail.

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the message was lost.
For want of a message the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

 I connect that thought to the court system. The 2017 statistics are not out yet but; in 2016, the Virginia Supreme Court issued opinions on 15 injury case appeals. This included death cases and malpractice verdicts.

In those 15 cases, the injured party only won twice. In the sports world, that is a 2-13 record. That is part of a continuing trend in Virginia. Over the last several years, the defense is winning at the appellate level of the Virginia Supreme Court by historic margins.

What do these statistics mean? Stay with me on my stream of consciousness.

Following Tuesday’s election, democrats were celebrating the victory of a an elected Democrat in Alabama. In Congress, it means that Republicans hold a slim 51-49 Senatorial advantage. It makes it difficult to push legislation through unless everyone votes along party lines. Similar to getting judges approved.

There is a similarity in Virginia. Selection of Virginia state court judges occurs through legislative election. Virginia is one of only two states that use this method in choosing judges. The other state is South Carolina.

It’s why  there are court challenges regarding this past November’s elections to determine whether Republicans or Democrats will control the Virginia House of Delegates. Right now, the difference stands at a Republican majority of 51-49, with a possibility of that still flipping.

That impacts laws. That impacts appointments. Which means… that could impact how a Supreme Court justice might apply laws during appeals. That’s not to say that any of the above opinions would have changed. But, in the federal system, it’s not unusual to see a ruling by a 5-4 decision.

Elections can impact judicial appointments. Appointments could potentially impact appellate decisions. It’s why every vote does count. It’s the little things.

And I decided to close with a pic o’ day that is not holiday related. But is is a blog tip…or something!

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Feeling Frozen

Yesterday I opened up PilotOnline to the article titled Effect of Trump’s job freeze in Hampton Roads is uncertain. It might be one of those articles that only effects you… if it affects you. (I think I just used those two words correctly!) But, this freeze took me down memory lane, because I remember when a freeze changed the course of my life.

A February 10, 1981 article in the New York Times gives a little background on the time when President Reagan put a Federal hiring freeze into effect. The freeze was the first official action that Reagan took, following his inauguration as President. It followed some of his campaign rhetoric, that he intended to balance the Federal budget when elected President.

During the fall of 1980, I was working as a legislative aide for Congressman William G. Whitehurst, in his Norfolk, Virginia, constituent office. I had started as a full time intern during the previous summer, and had transitioned to a 20-hour-per-week position during my junior year of college. As an intern at the time, I was earning the “intern salary” of $200 per week. Not considered much now… not considered much then!

I received a raise to $300 per week, when I became a “real Congressional aide” and left behind my intern status. I should mention that the pay included free hot dogs at the cafeteria on the second floor of the Federal Building. But that would be a hot dog falsehood. I had to pay for the hot dogs in money and pounds! It was part of my ritual of running from class, stopping off at the cafeteria, and then hustling to the 7th floor Congressional office every day; after finishing my morning college classes. When I think about it now, I don’t miss those lunch time hot dogs and I don’t miss that schedule of a working student!

Sometime after the November Presidential election and before Reagan took office, the Congressman’s office manager called me in to her office. Rena Wasserman was one of those ladies with contacts all over Tidewater. And, she knew that I wanted to go to law school. She told me that she had lined up a job interview for me, down at the Federal Court clerk’s office, in downtown Norfolk.

I don’t remember the exact particulars, but soon I was hired and I was supposed to start at the Federal Court Clerk’s office in the new year. I enjoyed the work of a Congressional aide, but working at the Federal Courthouse seemed like a dream job for someone intending to go to law school. Plus, I think I was hired as a GS-7. I am a little unclear on that now, but I remember that I would be earning a bit more than my Congressional aide position. And that was good news too!

The month of that December’s news was filled with stories that included Reagan’s promise that when he took office, he was going to implement a hiring freeze. Not that disconcerting to me, since I had already been hired. The month of December was exciting as I finished up my work at the Congressional office. I would only be a few blocks down the street in my new position.

Then it happened. A few days before I was to start at the clerk’s office, I received the call. I remember sitting at my Congressional office desk. The Federal clerk told me that my offer of employment was no longer available. Not only had President Reagan issued an executive order to freeze hiring, but he had also made it retroactive to all hires since November 5. He “reached back” into the months when he was President-elect. And I had been hired after November 5.

I sat stunned at my desk. Thankfully, Mrs. Wasserman had not yet hired my replacement. I still had my Congressional aide job… gladly!

I often wonder where life would have taken me, if I had gone to work in the Federal Courthouse. Would I have gone to a different law school? Would I have focused my practice into Federal Court? Or, would I now be a Supreme Court Justice? (OK, I know the answer to number 3. Not so much!) Or, would I have become disillusioned with law and abandoned law school plans to now be selling vitamins door-to-door? (Not so much either, I think)

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When I see that President Trump has issued a hiring freeze, I can respect the fact that the intent is based in trying to be fiscally sound. But, it also means that lives are impacted… and changed.

And for pic o’ day, something to ponder?

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Or maybe I should just wonder why this cat looks like it’s holding a gun in the tree, and not look back in life!!

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All Tangled Up!

“It’s the principle of the thing”. Or I hear, “I just want my day in court”. I start the blog out with things that I caution clients about when considering settlement offers. Don’t go to court for the wrong reason. Settle the case if the offer is fair.

In Sun Tzu’s Art of War (which I periodically reference), Law 47 is Do not go Past the Mark you Aimed for; In Victory, Learn to Stop. In handling injury claims, I try to apply this principle! Understand the value of a case. Don’t go to trial, just because the defense attorney angers me. Once you meet the target, accept it or go to trial for the right reasons.

That’s an analysis of how I think in settlement, and how I counsel clients in making their decision about whether to go to court or settle their case.

In that context, I saw that USA Today reported on a story about two bucks titled “Battling bucks die after antlers lock together in Missouri woods“. According to the person who found the two bucks on the ground, ”  They fought across that whole area. It was a pretty amazing. I’ve never seen anything like that before”.

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Apparently, neither one would give in to the other. So… they both died. Their antlers got so entangled as they fought, that neither could escape. Neither appeared willing to yield to the other. An 11-point-buck and a 12-point-buck who fought to the death.

I guess the story could be spun that they both were warriors who would not give in to surrender. Instead, I think it’s applicable to real life. As Kenny sang, Know when to hold them… know when to fold them“. In my world, it means knowing when it’s the right time to go to court… for the right reason.

And for pic o’ day that was sent from Erin, it’s all about effort and making progress!

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Too Late!

Poker players say that if you can’t spot the sucker at the table… then you are the sucker. It’s basically the same for people who are always late. If you don’t know someone who is always late… then you are that friend who is always late. Unfortunately for one lawyer, being late was costly.

It all started when Judge Bynum Gibson had asked the lawyers for both sides to be present at 8:30 a.m. He wanted to take care of trial motions before trial started at 9. (Monticello Live) This was a murder trial and the jury was ready to be seated.

When Arkansas defense attorney Jim Morris arrived at 9:08 a.m., he tried to explain that he was late because he had to take his daughter to camp and couldn’t reach the court by phone because of poor cellphone reception issues. Unfortunately for Morris, the judge said that the case was already concluded for the day. Poor Judicial Reception!

The judge held Morris in contempt and said he even considered jailing the attorney for 24 hours. Instead of jail time, Judge Gibson fined Morris—requiring him to pay $4,000 to the court clerk. It was based on the expense of the cost of compensating 60 to 70 prospective jurors and the witness fees that were also paid for this murder case.

“I’ve had defendants not show up, but never had attorneys show up after 9 o’clock,” Gibson said. “It’s killed 3 days of court time.” Now, the murder trial has been rescheduled for July.

Better late than never was not better. You just can’t be a highway cone. Have to keep it moving and be on time!

And for pic o’ day, that ole-fashioned technology… right?

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Courtroom Interrupting

What happens when a lawyer won’t stop talking? The Las Vegas Review-Journal tells us the answer.

Tensions began to mount during a Monday morning hearing. Zohra Bakhtary, a Las Vegas deputy public defender, had been in front of Judge Peace Conrad Hafen (Yes… Peace) for at least one day a week during the past year. Perhaps proof that familiarity does breed contempt.

Attorney Bakhartary was arguing to keep a man out of jail, who had violated probation on petit larceny charges. At some point, the judge told her to “be quiet.”

Here’s how the transcript reads:

Told by Judge Hafen  to “be quiet,” she kept talking.

“Zohra,” the judge said.

“You’re making—” she said.

“Do you want to be found in contempt?” the judge asked her.

“Judge, you’re asking—” she responded.

“Now. Not another word,” the judge said.

“Judge, you’re—,” said Bakhtary, who was cut off by the judge’s order to his marshal to handcuff her: “Travis, right now. I’m tired of it. Right now.”

Hafen then sentenced Bakhtary’s client to six months in jail. He then had the attorney handcuffed. Then she sat in the jury box, alongside inmates wearing jail clothing, while the judge finished his remaining docket.

Her client,  who had been arrested on theft charges, was found guilty and ordered to spend the next six months in jail on a probation violation

“And then, Travis, go ahead and un-cuff Zohra,” Hafen said. “I think she’s learned a lesson.”

Apparently, life has moved on. The attorney’s boss was interviewed by the reporter and explained, “I don’t think there’s going to be a hangover from this,” Kohn said. “She’s tenacious. It’s probably why today happened. But I don’t believe for one second that this will deter her from doing her job zealously. I know that she will continue to fight for her clients. As far as I’m concerned, it’s behind us.”

No word on how her client felt. Must have been curious to see her sitting… right there among the crowd!

And for pic o’ day, this just seemed applicable:

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Monumental Waste of Time

I can be accused of sometimes wasting time. However, I have never had a judge in open court make a determination that I was wasting time. Not so for some California lawyers.

A federal judge in San Francisco has showed his loss of patience with lawyers in a pending antitrust lawsuit. In the suit, the plaintiffs are claiming that credit card companies were slow to certify chip readers to assist in the fight against credit card fraud.

U.S. District Judge William Alsup declared the plaintiffs’ request for an injunction “a monumental waste of resources” in a March 16 court, while denying their motion for an injunction. The judge was so ticked off with their motion that the judge ordered the  lawyers to explain how they will provide opportunities in their litigation for “the next generation of practitioners.”

According to the Recorder, the judge wrote that “In reviewing the file, the court is of the view that the pending motion is so deficient that it would be a monumental waste of resources to require the 18 defendants to respond and oppose the motion.”

I don’t even care about the facts of the lawsuit. I am just fascinated with the judge’s order. It’s real! “Stop wasting time” is basically a good mantra to live by.

And for our pic o’ day… I couldn’t stop laughing about this when it was sent to me. Think about “Robert”.

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Police Bodycam in the Hallway

A Miami Beach Police officer, who didn’t trust a public defender, decided to use technology for his personal surveillance protection. (Miami Herald)

The officer was worried that his words would be twisted at the misdemeanor trial. So, he used his new “body camera” to record a hallway interview by a defense attorney without telling her. Then, when the attorney asked him to sign her notes after she interviewed the officer, he then told her that he had been recording the interview. That set off a firestorm!

Currently, under Miami Beach’s camera program, the officer did not have to inform the defense attorney that he was recording her in the court hallway. As the fraternal order of police put it, “It’s a public area. Any member of the public, including the media, can tape in that area.”

The public defender’s office was outraged that their work product could be taped without knowledge, and that it hurt representation. It basically comes down to an expectation of privacy in their eyes.

I suppose this did nothing to create a working relationship between that office and the police department. Maybe both were already a bit at odds, and body camera discussion turned the lens on the problem. (yep… see what I did there!!!!)

 

And for our pic o’ day, I have two from the “technology department”.

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Jury Rights and Comforts

An article on jury service grabbed my attention when it mentioned a judge handing out chocolate chip cookies. Plus, I refuse to acknowledge why Twitter is so fascinated with Baby Hitler. So,on to the cookie story.

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But first, some background … no, not on the cookies!

It’s exciting to think that a prospective juror would show up with excitement to hear a case. The reality is that they feel inconvenienced; angry at the parking; and hopeful that they get to go home early.

In Greenville, South Carolina, a jury panel shows up to the Courthouse and is directed to the basement. There, they are asked to watch a film on jury duty that was recorded several years ago. Usually, there are at least 100 people gathered on folding chairs in that room.

Soon, lawyers with cases that might be called during that term are brought downstairs to watch all the jurors stand, and be called by name.

The first time that I participated in that process, I realized that unless I had a photographic memory, I wasn’t getting much by watching over 100 people stand and sit. I suspect that it feels very impersonal for the prospective jurors as they popped up and down while their name was called.

Arizona is the only state that I know, who formally has enacted a Juror Bill of Rights. It begins with the statement that JUDGES, ATTORNEYS AND COURT STARFF SHALL MAKE EVERY EFFORT TO ASSURE THAT ARIZONA JUROR ARE… and then it lists twelve items. The first involves courtesy and respect and the last involves being paid.  Yes, that statement is printed in all caps. I didn’t want you to think that I was hollering.

A District Judge in Sioux City, Iowa, is also taking treatment of jurors very seriously. He says that he uses the acronym WWJW as an approach to jury trials, and he means by that What Would Jurors Want?

In an upcoming article that he has written for the Arizona State Law Review, he is proposing his own Bill of Rights for Jurors. Here is a condensed version of his list:

1) The right not to have their time wasted with “unnecessary, cumulative and excessive evidence.

2) The right to be told during jury selection in civil trials exactly how long a trial will last, minus the time for deliberations. Bennett and his law clerk use an online chess clock to measure time limits during the trial.

3) The right to have plain-English jury instructions before opening statements. Bennett’s instructions “come complete with a meaningful table of content, bullet points and white space.”

4) The right to have their judge “thoughtfully consider innovations that enhance their experience and the fairness of the trial.”

5) The right to “juror creature comforts.” This includes comfortable seating and nutritious snacks. Bennett bakes cookies for the jurors in trials lasting four days or more.

Not sure that the cookies count as nutritious… but I know some folks who would sit on the jury for a day. Of course, I know a few who can’t stand chocolate. For them… maybe a Flatbread pizza! Maybe there is a good movement afoot for making jurors happy!

And  now to our pic o’ day from my Mom:

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