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

Has anybody seen my 2003 To Do List? 

  wishing you peace and prosperity in 2004!

                                                                         from haikuEsq & ethicalEsq

In this season of bliss, it’s probably good that the public is ignorant of the legal profession’s newest crisis: too few trials, a/k/a Vanishing Trials.   As reported here, the ABA’s Litigation Section held a Symposium on December 12 – 14 in San Francisco, delving into the reasons for a dramatic decline in the overall number of trials, despite an increase in case filings — a situation that is “troubling many litigators.”  (“Vanishing Trials’ Issue Won’t Go Away: Conference Seeks Reasons and Solutions for Decrease,” ABA eJournal, by Stephanie Francis Ward, Dec. 19, 2003)

• In the federal courts, the percentage of civil cases reaching trial has fallen from 11% in 1962 to 1.8% in 2002. In spite of a five-fold increase in case terminations, the absolute number of civil trials was 20% lower in 2002 than it was 40 years earlier.
• As trials diminish we find in their place increases in settlements, in disposition by summary judgment, and in diversion into Alternative Dispute Resolution.
• The more robust explanations seem to include increases in cost and risk that discourage parties from proceeding to trial, institutional changes in procedure that encourage such avoidance, and a corresponding shift in the ideology of judges, who increasingly view their role as dispute resolvers rather than adjudicators. These may in turn reflect fundamental changes in the organization of legal services and the way that legal professionals and parties view the legal process.

Galanter acknowledges that “The consequences of the decline in trials are even more difficult to fathom than its causes,”  but he seems to worry that “If most outcomes reflect ‘bargaining in the shadow of the law,’ it appears that the portion of the shadow cast by formal adjudication may be shrinking.” (semble)

Call me biased or a fool, but Galanter’s numbers and possible explanations make me want to cheer, not fret.  I spent the majority of my legal career trying to help clients/consumers move away from the “justice = trial” model of our legal system, and toward the increased use of “alternative” methods of dispute resolution.   The ABA’s own Section of Dispute Resolution is dedicated to that goal, sponsoring over 40 committees and task forces, with conferences on court-annexed ADR, and programs to help lawyers learn to be “problem solvers” — rather than merely seeking and super-sizing them.

• Snide Aside: I’m sure that dentists fret about having too few cavities to fill since fluoride use became widespread, and some funeral directors are disappointed in the ever-increasing longevity of our population.  But, neither of those professions would have the gall to hold symposia on how to reverse such trends.

The legal profession should be helping to remove the misconception that true justice can only be achieved through a trial, rather than finding arguments to perpetuate the notion.  Too much litigation is a curse, even if having too few trials will force some trial lawyers to find other sources of income.

The ABA press release stated that other papers presented at the Symposium would be available online, but that does not yet appear to be the case.   Unless and until I see highly convincing evidence that a scarcity of trials is hurting the cause of justice, my gut reaction to litigation and trials can be seen in the following quotes (from Poetic Justice, edited by Jonathan and Andrew Roth, Nolo Press, 1994):

As a litigant, I should dread a lawsuit beyond almost anything else short of sickness and death. — Judge Learned Hand

The houses of lawyers are roofed with the skins of litigants. – -Welsh proverb

A lawsuit is a fruit-tree planted in a lawyer’s garden. — Italian proverb

The lawyer’s prayer: God grant that disputes may arise that I may live. — Spanish proverb

May you have a lawsuit in which you know you are right. — Spanish Gypsy curse

Discourage litigation.  Persuade your neighbors to compromise whenever you can.  Point out to them how the nominal winner is often a real loser in fees, expenses and waste of time. — Abraham Lincoln

Christmas 1950

giacalone, giacalone & giacalone

No matter how you celebrate, e&h wishes you a time filled with much joy,  gratitude and holiday spirit. 

Don’t forget to let a few haiku moments happen, too.

p.s. Yes, Mama Giacalone had some cute kids! (that’s me upfront, big sister Linda in the middle and in charge, and twin Arthur for ballast.)  As Denise has suggested, Mama never had enough arms.

-e&h-e&h-e&h-

Special holiday thanks to  friend and webjournaliste George M. Wallace, who can never resist good wines or bad puns at his mostly high-brow A Fool in the Forest , for including us in a random selection of seasonally apropos weblog selections.

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• You can insert your weblog URL here on Anders Jacobsen‘s Blog to see the kind of ads your site would generate using AdSense. [many thanks to Mike O’Sullivan for this most helpful clue]

Google AdSense is a fast and easy way for website publishers of all sizes to display relevant, text-based, unobtrusive Google AdWords™ ads on their website’s content pages and earn money. Because the ads are related to what your users are looking for on your site, you’ll finally have a way to both monetize and enhance your content pages.  The program is free, and Google pays you for clicks on the AdWords ads on your site.

good ideas

A number of recent developments should bring joy to consumers of legal services — especially, if they are copied throughout the nation.  Let’s hope that these efforts to increase consumer options (and maybe save them a few dollars) are infectious

California Court of Appeal Creates Step by Step Guide for the Self-Represented in Civil Appeals

As reported at the Self Help Support website, The California Court of Appeal in San Diego has recently released an online manual for pro se litigants (and “attorneys with little or no appellate experience”) who are bringing civil appeals — The California Court of Appeal Step-by-Step.

The manual described the civil appellate process and the related Rules of Court in simple terms.   The Introduction states:

The process of appealing a civil case is presented as a series of steps. Many of the steps are in the form of questions that you need to answer in the order shown. This manual answers some questions and guides you in answering others. At the end of each chapter are the forms for the Fourth Appellate District, Division One, that are most often used in appeals and are referred to in the chapter. Each form has instructions and a blank for you to use in your appeal if you wish to do so and are filing in Division One of the Fourth Appellate District.

For filing, briefing, and/or arguing your appeal, think about hiring an attorney if you are able to do so. Bringing a case to the Court of Appeal without an attorney is hard work and takes a good deal of time. If you are self-represented, you are held to the same level of work as if you were an attorney. In most cases, you have only one chance to have the court hear your case. In addition, you must follow all of the court’s rules and procedures. If you do not, your case may be dismissed.

Effective Dec. 1, 2003, in order to encourage the consideration of mediation as a dispute resolution option in every case, all civil litigants in Chesterfield County (Virginia) Circuit Court are required to complete a Mediation Orientation Certification Form and indicate their interest in participating in a mediation orientation session.  According to a court newsletter announcing and describing the program

The Mediation Orientation Certification Form requires that Counsel certify to the court that they have discussed with their client the availability of mediation and also indicate the client’s willingness to participate in or opt out of an orientation session. A copy of the Mediation Orientation Certification Form will be provided to counsel by the Court.  . . . Pro se parties will also be required to complete and return the form to the court. If at least one party indicates a willingness to mediate, the court will refer the case to a mediation orientation session. The Court may also on its own motion enter an Order of Referral.

• Besides needing well-trained and motivated “neutrals” to conduct the orientation and mediation sessions, the program will need the good faith participation of all lawyers involved — including a fair, objective description of the mediation process and its potential benefits and disadvantages for the client.  If one does not already exist, I hope a well-written brochure describing mediation will be made available to attorneys to help inform their clients.

Dennis Kennedy wrote yesterday that Blawgspace is a Generous Place, stating that “the earliest group of blawgers (the “First Ones”)” have been very generous and helpful to new blawgers.”  Dennis adds:

Ernie the Attorney, Tom Mighell, Denise Howell . . . and others have gone out of their way to mention new blawgs and give new blawgers a bigger audience and more recognition at the start than they could ever have imagined.

As we near the end of 2003, it is so cool to see how blogs have not only brought back the enthusiasm and energy of the early days of the web, but also provided a medium in which lawyers can show that the TV picture is not the only picture, that lawyers can be creative, generous and help in creating communities.

With that, I salute those who have created the blawgosphere in 2003.

I want to express my own thanks to the First Ones, including Dennis, for their spirit of generosity and welcome.  They have helped this webjournal achieve far more than I could have possibly imagined when I started last summer.  The resulting audience and receptivity for a client-oriented perspective on legal ethics and the delivery of legal services may not produce miracles in 2004 or anytime soon, but it will surely give lawyers the chance to reflect more deeply on many relevant topics and give consumers more information to help make them wiser participants in the legal marketplace.

• P.S. Soloist maven Carolyn Elefant of MyShingle added her perspective on the beneficent blawgiverse today (12-20-03).  Carolyn says she, too, has benefitted from that welcoming sense of community and sharing, but I want to attest that she has “played it forward” and has often reached out to assist and gently nudge this webjouraliste. [Must be the Hanukkah spirit, but this goy is getting all verklempt.]

When was the last time you clicked on a weblog link for a book that didn’t take you to Amazon.com?  As an advocate for competition and consumer choice, I’ve often felt annoyed that webloggers have granted a hyperlink hyper-monopoly to one internet source of consumer items.

So, I’ve been trying to find alternatives when I mention a book on this site — sources that offer the reader not just the chance to buy the book, but information about it, with objective reviews (if possible), and consumer feedback.  Low prices and shipping fees, tax-free opportunities, links to other books by the author or similar titles, and the chance to buy used copies of the book would also be nice.

And — trust, me I own no stock in the company — I have not been able to find any alternative source that comes close to what Amazon.com has to offer my readers with one click.   It’s a maxim of antitrust law that monopoly won on the merits is completely lawful (although Mr. Gates learned that maintaining one unfairly is a problem).   Until I discover a comparable substitute, it looks like I’ll be joining the web-throng linking almost exclusively to Amazon.com.  

Now, who said I don’t have an open mind?

  “My lawyer won’t let me” and “My lawyer said I could” are rarely convincing justifications when uttered by Joe Client.  They totally fail to ring true when coming from high government officials who have armies of lawyers employed for the primary purpose of providing excuses for political decisions.

-e&h thanks-

to Ernie for noting the noteworthiness of this most humble weblog.  What could be better than legal ethics and haiku?  A daily dose of vitamin Ernie, of course.

  The 7th Circuit decided today that the Federal Trade Commission does not have to give the names of consumers who have submitted complaints about “cramming” to lawyers who want potential clients for a class action suit. (The Lakin Law Firm, P.C. v. Federal Trade Commission (12/16/03 USCA 7th Cir.)).  (Thanks to Marcia Oddi at the Indiana Law Blog for the pointer; as usual, Marcia has ably summarized the decision.)

 “[t]his information is exempt from release  under FOIA Exemption 6, 5 U.S.C.

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