It’s Kagan-All-The-Time in legal periodical world.  I’ve been impressed with her since hearing Kagan speak at a few conferences.  She’s a good choice for the Court, and I think she’ll be approved.  She is smart, personable, comfortable in her own skin, and confident.  I think she’s pretty much in the center–she’s attracted flak from both the left and the right, which is a plus.  She had not been an ideologue, another plus.  The most refreshing analysis (from Legal Blog Watch via Bitter Lawyer via the source of most of my legal insights, MLB.com) concerns her batting stance:

Major League players critique her hand position (“she’s got the Barry Bonds choke-up working, maybe that’s two strikes on her”), balance (“her weight’s distributed evenly”), aggressiveness (“you can’t smile at the pitcher or you’re gonna get hit”), and other attributes as a batter.  It’s amusing, and as useful as much of what one can read about her online.  When Scalia tries to throw one by her, don’t you want to know that she can handle it?

Texas community college freshman Kelsey Gloston did not want to fulfill jury duty.  Called with 59 other prospective jurors to federal court in Houston, Gloston ignored the summons.  When the court clerk called to ask where she was Gloston blamed her absence on a flat tire.  When the clerk offered to drive her to court she said she was going to class instead.  When the clerk called back to say the judge himself wanted her in court the next day to explain herself, Gloston “repond[ed] rudely and hung up.”  The following day U.S. Marshals “rounded up” Gloston and brought her before Judge David Hittner “in ankle and wrist restraints . . .  wearing flip flops, a tight white T-shirt, short-shorts and sporting green streaks in her hair.”  The angry judge said “I’m going to hear exactly what your problem is with jury duty and what your problem is with how our country operates. . . . Nobody hangs up on our people.”  Judge Hittner released Gloston on instructions that she appear with a lawyer the following day for a contempt hearing.  Gloston appeared as ordered, apologized for her disrespect, and was let go with a lecture and a copy of the Constitution.  At first Gloston’s father planned to sue–of course–and blamed the judge for overreacting, saying of his daughter “she’s 19, she’s ignorant, she’s a kid. They don’t take anything seriously.”  (Way to have my back, Dad!)   Now he’s happy to put it behind.

Over the last few days I’ve heard from two former students who are now in the first year of law school.  The first relayed two “things I wish I knew at SMG about law:”

The first is the fact that jurisdictions have different standards and different tests to apply to the same concept.  It seems obvious, however in real estate law I never remember going over how New York has codified their implied warranty of habitability making proving breach easier while other states, like Massachusets, have their implied warranty of habitability grounded in common law.

The second is a more depth explanation of stare decisis and the difference between binding and persuasive precedent.  Knowing which court’s decisions are binding [and] where is very important . . .  most students [do not] realize that decisions made by appellate courts in different circuits are not binding on each other.

The latter point was particularly timely, coming one day after discussing in class an exam question about “binding precedent” that most students answered incorrectly.  I’ll convey the concept more clearly next semester.

The second mentioned how his SMG law classes prepared him for law school:

Taking both LA245 and 349 seriously prepared me for the first year. My contracts professor is really “old school,” in that he requires written briefs of every case, and makes us stand up when he calls on us — but having done the case briefs in your classes made it much easier to handle. Also, I’m really amazed with how much we covered in those courses, because a lot of what we have been working on are things I already understood from your class: consideration and offer/acceptance in my contracts course…. res ipsa loquitur in torts… restrictive covenants and protected classes in property… those are just coming to mind. There are also the auxiliary concepts we picked up on the way, like how different jurisdictions might be favorable, or the hierarchy of the court system, or even that Pi = plaintiff, and Delta = defendant … all things that a lot of my classmates didn’t know or understand at first.

He confirms what I tell prospective law students in the advanced courses:  case briefs and discussion-based classes can help train students for law school, but other students will catch up to whatever edge they provide.  Still, it is heartening to hear the courses benefited him in some way.

The recession has whacked salaries of associates of big law firms, but has not reduced the disparity in starting associate salaries according to Study Shows Sharp Disparities in Law Associate Compensation.  The study is based on 2008 starting salaries.  Since 2000 starting associate salaries abandoned a bell-curve distribution for a distribution with two peaks.  The first is part of a small bell curve between $40,00 and $65,000 and accounts for 42% of starting salaries.  The line trends down steadily to $65,000 and then soars to a narrow peak between $160,000 and $170,000, where 23% of starting salaries lie.  A rollback in starting salaries and re-engineering of associate compensation models should move that peak to the left in coming years–it may “inch back toward the $145,000 range” flatten the curve.  In other words the low end will remain low and the high end will move closer to it.

I’ve not had jury duty for at least a dozen year.   A jury summons used to arrive in the mail every three years and then–nothing.   Last year the jury commissioners rediscovered me but the date, October 9, conflicted with teaching.  (That conflict existed only in my eyes.  It would not likely have excused me from serving.)  I rescheduled to today, March 9, the first Monday of spring break.  The numbers worked in my favor.  Most of those summoned for jury duty are not seated on a jury and if I were to be seated the average trial in Middlesex Superior Court lasts four days.  I could satisfy my civic responsibility and not miss any class time.  I would like to be a juror.   In recent years my wife and two of our three sons have sat on juries and they all thought it was interesting and rewarding.  I’m jealous.

Then a hitch developed.  Judy wanted to visit her father this spring in Florida, I have this week off from teaching, so why don’t we go?  We dealt with the potential conflict with jury duty by scheduling the trip for the end of the week and next weekend.  Not much margin but how likely was it that I’d be selected for a jury?  I’m a lawyer, a college lecturer, once a defense counsel used a peremptory challenge to bounce me from a criminal case because family members have been victims of crime–the numbers made actual jury time unlikely.   I approached today with an odds-maker’ s confidence.

I drove through fog, heavy wet snow, and morning rush hour traffic to arrive on time at Middlesex Superior Court in Woburn.  After passing security–my hip set of the metal detector–I checked into the jury assembly room with 143 other souls.  After the obligatory judge’s welcome and instructional video I opened the privacy text I’m using in a seminar starting next Monday and read while I waited for something to happen.  We were told that eight judges had jury trials starting today–that would be 112 jurors at 14 jurors (12 +2 alternates) per panel.  With conflicts, challenges, and excused dismissals and factoring in the number gaps caused by absentees my #131 looked vulnerable.

The court officers made an announcement: 40 jurors were needed upstairs for a criminal trial.  Numbers were called out, ending at 48 because of absentees, and the pool walked up two flights.  I returned to reading about digital searches and seizures.  Twenty minutes passed.  Another announcement:  70 jurors were needed upstairs for another criminal trial.  I packed my bag before they called my number.  Seventy of us climbed two flights of stairs to Judge Fahey’s large, light, and airy courtroom and I took a seat in the first row on the visitors side of the bar.  The Woburn courtooms are much nicer than those in the old courthouse in East Cambridge.   Judge Fahey entered, we all rose, the judge sat, we all sat, and then she told us about the case.  Three counts: attempted murder, assault with a deadly weapon, assault.  She read the list of prospective witnesses:  there were more than 20.  Uh-oh.  There go Florida and maybe the first few days of post-break classes if I am chosen.  The judge questioned us aboutour  potential bias, conflict of interest, difficulty understanding the proceedings, and substantial hardship if selected for the jury.  With a dozen others I raised my hand on the last question, prepared to mention my non-refundable airline tickets to visit my 88-year old father-in-law.  The clerk recorded our numbers–if we were called we could explain our hardship to the judge and counsel, and the judge would decide whether to excuse us from this trial.

The clerk called the first number.  The juror rose and took seat #1 in the jury box.  The clerk called another number, and another, repeating the process until jurors filled 14 seats.  The judge excused a few before they were seated.  Her sidebar conversations with the jurors were out of our earshot.  The prosecutor and defense counsel studied the juror questionnaires for five minutes, then approached the judge with their peremptory challenges.  The judge excused the challenged jurors and new jurors were called in sequential order, seated in the box, and subjected to the same scrutiny.  In this fashion it took almost an hour to select a jury.  The last one chose was juror #88.  Plenty of warm bodies before they would have gotten to me.  I was disappointed because it looked like an intersting trial, but relieved not to have to explain to Judy that I couldn’t come to Florida.  All of us not chosen returned to wait in the assembly room.

Twenty minutes later there was another call for jurors, 70 for a civil case.  I did the math. 28 jurors had been selected for two trials, they needed 70 more, there were a number of gaps in the number sequence–I might be called for another impanelment.  The court officers read out the numbers:  “44 . . . 48 .  . . 49 . . . 52 . . . “  I cheered when a string were called in sequence:  “90, 91, 92, 93, & 94.”  The numbers rose from 100 to 110 to 115.  It was getting close.  “120 . . . 121 . . . 122 . . . Okay, that’s it.  The 70 jurors called report to the 6th floor with the court officer.”

Whew.

I returned to privacy law and read for a while, until another court officer spokeinto the podium microphone.  “Two more judges upstairs need jurors.   Unfortunately, there are not enough of you left to fill the pool so one trial is put over to tomorrow and the other is putover to Wednesday.  This completes your jury duty for three years.   Thank you.”   Two minutes later the room was empty.  It was 11:50 AM, unprecedently early to be excused from jury duty in my experience.

Writing this and watching heavy snowflakes fall through gray mid-afternoon light, I’m happy to be home.  I have much work to do before next Monday and will enjoy a few days by the ocean in Florida weather.  Part of me would like to be seated in that criminal trial hearing the prosecution’s case.  Not the most part, but a part.

If someone asks how to get out of jury duty I tell them what they don’t want to hear–it’s their civic duty, everyone should serve on a jury, etc.  Massachusetts makes it easy to preach this line its “one day, one trial” system provides little wriggle room to escape jury service.  Everyone does serve on a jury in Massachusetts–judges, lawyers, law students, law professors, doctors, failed presidential candidates (John Kerry served on a jury about six months after the 2004 election), students who live in Massachusetts eight months out of the year to attend school . . . everyone. I have no sympathy for people who try to duck it.

I did, however, just read a story about a juror who was deservedly discharged from a Massachusetts jury in a criminal trial.  The defendant was convicted and claimed on appeal that the judge abused her discretion in discharging this juror.  The Massachusetts Appeals Court did not agree and upheld the conviction.  The title of the story merits a spoiler alert; click to read The Case of the Stinky Juror.

Legal blogs are a-buzzin’ over the story of the porn stash of Alex Kozinski, Chief Justice of the 9th Circuit Court of Appeals. Some time ago Kozinski posted sexually explicit pictures on his personal, publicly-available website. The pictures have since been removed. I’ve read nothing to suggest that the pictures were obscene or otherwise outside the protection of the First Amendment but their presence on Kozinski’s website is news because (1) he is one of the highest-ranking federal judges in the country, (2) Kozinski has courted notoriety before (follow the links for details), (3) he is presiding over an obscenity case in Los Angeles from which some calling for his recusal, and (4) well, it’s porn. I intended to ignore the whole kerfluffle–Kozinski is guilty of bad judgment, perhaps, but so what?–then remembered that Internet law students know Kozinski as the author of the majority and subsequent en banc opinions in Fair Housing Councils v. Roommates.com CDA s.230. Trivial news, I know, on a day when the U.S. Supreme Court slapped down the Bush administration and ruled 5-4 that Guantanamo detainees have the right to habeas corpus, but in 11 hours I’m leaving for a week-long bike trip across Oregon and the Kozinski porn story better fits my mood.

This amusing New Yorker cartoon captures in one panel a judge befuddled in mid-sentencing by a computer program, a clerk providing instructions over his shoulder, and a criminal defendant awaiting whatever happens next–technology’s inexorable influence on the institution of law.

There are two types of defense attorney for indigent criminal defendants: salaried employees of state and federal court systems, and private attorneys appointed by courts from time to time to represent defendants at an hourly rate. My anecdotal experience is that full-time salaried public defenders tend to do a better job than court-appointed counsel. (Of course there are exceptions.) Many of the former choose the public defender’s office as a career and have years of experience with their courts and prosecutorial counterparts. On the other hand many court-appointed counsel are relatively inexperienced. Getting on the list for criminal appointments provides a source of revenue and trial experience for young attorneys who’ve recently hung their shingle. A recent study by Radha Iyengar titled An Analysis of the Performance of Federal Indigent Defense Counsel bears out my impressions. Published by the National Bureau of Economic Research the study measured the difference in performance by the two types of indigent counsel states its conclusion thus:

Exploiting the use of random case assignment between the two types of attorneys, an analysis of federal criminal case level data from 1997-2001 from 51 districts indicates that public defenders perform significantly better than CJA panel attorneys in terms of lower conviction rates and sentence lengths. An analysis of data from three districts linking attorney experience, wages, law school quality and average caseload suggests that these variables account for over half of the overall difference in performance. These systematic differences in performance disproportionately affect minority and immigrant communities and as such may constitute a civil rights violation under Title VI of the Civil Rights Act. (Study Abstract)

As reported in an article in The New York Times, in addition to costing more, “lawyers paid by the hour are less qualified and let cases drag on and achieve worse results for their clients, including sentences that average eight months longer.” This disparity is “largely due to differences in attorney performance when negotiating a guilty plea and the selection of which cases to plead rather than to take to trial.” (Study, p. 3) The study looked only at federal criminal cases but there’s no reason to believe there would be a different result in states that provide both salaried and court-appointed counsel for indigent defendants.

Another headline that says it all: Judge: Ex still due alimony when she becomes he. My first thought is that of course the husband still owes alimony, which is (or should be) a support obligation arising during marriage that reflects the paying spouse’s status as primary earner during the marriage. His ex-wife is still his ex-wife. The operation is not retroactive.