Regional Conflict Insights


                                                              JUSTICE     

                       Greenpeace v Resolute Forest Products

Greenpeace has released the following statement on the legal dispute with Resolute Forest Products  which sued Greenpeace for $276 million.

District Judge Jon S. Tigar wrote that “the defendants’ speech constituted the expression of opinion, or different viewpoints that [are] a vital part of our democracy.” Noting that “Greenpeace’s publications at issue rely on scientific research or fact.”[1]

We are so grateful to the people around the world that took action for free speech and forests — and made it clear that this lawsuit was a cynical attempt to silence Greenpeace and our co-defendant, Stand.Earth, with legal threats and burdens. You continued to stand with Greenpeace as we fought back and refused to give up fighting for a flourishing environment and prosperous communities.

CBC Canada reported on the Court's decision in the following terms:

Resolute lawyer Michael Bowe says the ruling merely requires the Montreal-based paper and forest products company to amend within 21 days its filing to provide more details to back up its claims.

In an email, he described the ruling as not a significant setback.

If the amendment is dismissed, he says Resolute would appeal and expects to prevail.

Greenpeace responded;

"The fight isn’t over yet. Resolute still needs to drop another meritless lawsuit against Greenpeace in Canada. I hope that Resolute is finally working to address its destructive forestry operations and forge a collaborative and sustainable path forward.

And other corporations are mimicking Resolute’s failed attack.

Energy Transfer Partners — the oil company behind the Dakota Access Pipeline — has hired the same law firm to sue Greenpeace as part of a criminal enterprise. And, no surprise, it’s Trump’s go-to law firm too.

These cases don’t seek justice. They intend to silence free speech through expensive, time-consuming litigation. This pattern of harassment by corporate bullies must be stopped in its tracks."


                          American Bar Association Law Day

Every May 1, the American Bar Association celebrates Law Day with activities and programs, based around a single theme and intended to celebrate the rule of law in American society. President Dwight Eisenhower declared the first Law Day in 1958, and in 1961, Congress made May 1 the official Law Day going forward.

The ABA has chosen “The 14th Amendment: Transforming American Democracy” as the focus for its Law Day 2017 activities, in advance of the 150th anniversary of the amendment’s ratification next year. The 14th Amendment has become one of the most important sources of modern-day civil rights, with its guarantee of equal protection and due process. For its May edition, the ABA Journal produced a cover story and photo gallery devoted to how the 14th Amendment was drafted and how it has been interpreted over its 149 years.

Read more at link below.

http://bcove.me/hzscwv75


      

Lawsuit filed against Dominica government over concert cancellation


ROSEAU, Dominica -- Cabral Douglas, son of former prime minister of Dominica Rosie Douglas, has officially filed legal proceedings at the Caribbean Court of Justice (CCJ) against the government of Dominica over the cancellation of a concert caused by what is described in court documents as the “unlawful arrest, detention and deportation of Jamaican artiste Tommy Lee Sparta and his entourage without cause".


.....this is the first recorded case of skilled CARICOM nationals contracted to work in the host CARICOM state being denied entry, which could prove to be a major setback to the regional integration movement as defined by the Caribbean Single Market Economy (CSME), which Dominica, ironically, is responsible for implementing in CARICOM’s quasi-cabinet.

See Caribbean News Now 08/30/2016 

                                                                                    Muslim Woman's Head Scarf Case Revived by SCOTUS

WASHINGTON — The Supreme Court on Monday revived an employment discrimination lawsuit against Abercrombie & Fitch, which had refused to hire a Muslim woman because she wore a head scarf. The company said the scarf clashed with its dress code, which called for a “classic East Coast collegiate style.”

“The decision by the Supreme Court today affirmed the basic right to practice one’s faith freely without fear of being denied the opportunity to pursue the American dream,” said Gurjot Kaur, senior staff attorney of the Sikh Coalition, a national advocacy group.

Read more at:http://www.nytimes.com/2015/06/02/us/supreme-court-rules-in-samantha-elauf-abercrombie-fitch-case.html?smid=tw-nytimes&_r=0

                                 Only 54 Law Enforcement Officers Charged in Thousands of Fatal Shootings

BY DEBRA CASSENS WEISS for ABA Journal (Online)

 Only 54 law-enforcement officers were charged in thousands of fatal shootings of suspects in the past decade, an analysis has found.

Thirty-five of those cases have been resolved, and in 21 of the cases the officers were acquitted or the charges were dropped, according to theWashington Post, which conducted the analysis with Bowling Green State University. The study sought to identify every officer who has been charged in a fatal shooting based on public records and interviews with police, judges and police.

The victim was unarmed in the “overwhelming majority” of cases in which an officer was charged, the story says. Also common in many of the cases: The victim was shot in the back, a video recorded the incident, other officers testified against the officer, or the charged officer was accused of a cover-up.

Read more on ABA Journal , 13th April, 2015

From the American Bar Association

What lawyers want trial judges to know (and vice versa)


U.S. District Court trial judges responded to topics of concern by federal trial court practitioners who represent both criminal defense and civil trial bars at the Midyear Meeting session “What Lawyers Want Trial Judges to Know: A Candid Dialogue.”


The Feb. 6 program was an open dialogue moderated by Peter Webster, a shareholder in the Tallahassee office of Carlton Fields Jorden Burt.

“The motivating concept for this panel was the growing disconnect between what lawyers feel they are entitled to and what federal district judges think lawyers are entitled to,” Webster said. “However, the problem may be more perception than reality. We hope to raise the level of awareness for attorneys and federal judges regarding where perceived problems might lie.”

Discussion areas included professionalism and ethics, the  use of magistrates, how active the judges are in case management, the questioning of witnesses by judges and juries, conflicts and disclosure, court rules of individual judges, the conduct of young lawyers and their low participation in the organized bar, and the role of case managers.

Part of the discussion concerned scheduling and communication—with complaints on both sides. The lawyers said they would like an indication from the judges on when they intend to rule on a case, so they can advise their clients accordingly. The judges responded that they would like swift notice from the lawyers when they settle a case, before they go out to celebrate. The judges can then notify other litigants that they have moved up in the docket, and those lawyers can have their witnesses ready, etc.

During the conversation, the biggest area of agreement between the groups concerned their opposition to the election of judges.

Betsy Kamin, a partner at Strasburger & Price in Houston, took note of two of her fellow panelists, Texas federal judges Vanessa Gilmore and Philip Martinez, and said, “I practice before these two. If I pull my punches, you’ll know why.”

“What Lawyers Want Trial Judges to Know: A Candid Dialogue” was sponsored by the Judicial Division.


                                                                PRISONER EXONERATIONS

Marcia Coyle, The National Law Journal

January 27, 2015  

Prosecutors’ investigation of innocence claims boosted the number of prisoner exonerations to a record level in 2014, according to the National Registry of Exonerations at the University of Michigan Law School.

The registry credited prosecutorial "conviction integrity units" for contributing to the spike in total exonerations: 34 more than the previous record of 91, set in 2013. The total in 2014—125—made it the first year in which the number has surpassed 100 since 1989.


 2013-2014Homicide46% (42)38% (48)Sexual Assault14% (13)10% (12)Child Sex Abuse7% (6)4% (5)   All Homicides & Sex Crimes67% (61)52% (65)   Drug Crimes12% (11)31% (39)All other crimes21% (19)17% (21)   All Non-Homicide Non-Sex Crimes33% (30)48% (60)   Total100% (91)100% (125)

Chart: The National Registry of Exonerations



Read more: http://www.nationallawjournal.com/id=1202716140009/Prosecutors-Efforts-Boost-Prisoner-Exoneration-Numbers#ixzz3Q1rBGSOi

                                                      Mediation Is A Global Trend                 

UK Law Firm Kingsley Napley's Dispute Resolution Law Blog offers the following opinion:

Most lawyers in this jurisdiction would be against a more dramatic change in England and Wales whereby mediation becomes compulsory. This is because mediation will generally only be an effective method of ADR if parties want to mediate, genuinely consent to and engage in the process and do so at the right time. In any event, there will be a rise in the number of mediations in England and Wales so long as litigants are placed under increasing pressure by the Courts to explore other methods of resolving claims. From a quick glance at the foreign lawyers’ comments above, we also expect that trend to be reflected in most other jurisdictions, although it may be quicker in some jurisdictions than others.

Read more at:http://www.kingsleynapley.co.uk/news-and-events/blogs/dispute-resolution-law-blog/a-global-trend-towards-mediation-views-from-lawyers-in-13-countries


                                                            Indefinite Detention In The USA

 

            US SUPREME COURT UPHOLDS MICHIGAN'S BAN ON AFFIRMATIVE ACTION

 By Dan Roberts, Tuesday 22nd April, 2014, The Guardian.

A ban on affirmative action policies that favour minority students has been upheld by the US supreme court, in a ruling that racial equality campaigners claim is as significant a setback for the civil rights movement as the court's recent reversal of the Voting Rights Act.

Six justices ruled on Tuesday in favour of a ballot initiative narrowly passed by Michigan voters in 2006 that banned the state's public universities from using race as a factor when deciding which students to admit, arguing that doing so discriminated against white students.

The ban had been ruled unconstitutional by a lower appeals court, but the supreme court overturned the earlier decision and upheld the Michigan law on the grounds that it was up to voters in each state to decide whether to allow affirmative action.

The majority argued the case was not about the merits of the policy itself, but whether states should be left free to decide on this vexed political issue rather than the courts.

The court’s conservatives – and swing vote Anthony Kennedy, who wrote the decision – were joined in the ruling by liberal justice Stephen Breyer, who emphasised in a concurring opinion that he believes “the constitution permits, though it does not require, the use of the kind of race-conscious programs that are now barred by the Michigan constitution,” but added, “the constitution foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.”

However, opponents of the Michigan law argued that a majority of white voters should not be allowed to prevent universities from seeking to adjust for social and economic factors that they say unfairly hold minority students back.

“We are fortunate to live in a democratic society. But without checks, democratically approved legislation can oppress minority groups,” wrote justice Sonia Sotomayor in a dissent in which justice Ruth Bader Ginsburg joined her.

“For that reason, our constitution places limits on what a majority of the people may do. This case implicates one such limit: the guarantee of equal protection of the laws. Although that guarantee is traditionally understood to prohibit intentional discrimination under existing laws, equal protection does not end there … to know the history of our nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process.”

Justice Elena Kagan, another of the court’s liberals, sat out of the case due to conflicts of interest.

Although a majority of supreme court justices argued their Michigan decision should not be viewed as a blow for affirmative action in general, it follows a similar ruling in June that also raised the bar for those remaining universities that seek to apply such policies.

The conservative-dominated court has also been heavily criticised by racial equality campaigners for overturning parts of the 1965 Voting Rights Act last June on similar constitutional arguments in favour of states' rights.

“This is as bad as the voting rights decision,” said Detroit lawyer George Washington, who represented the Coalition to Defend Affirmative Action in the latest Michigan case.

“These are major attacks on the civil rights movement that will lead to a re-segregation of universities,” he told the Guardian.

But justice Anthony Kennedy, who wrote the court's majority decision, insisted it was wrong to read this much into the case.

“[I]t is important to note what this case is not about,” he said. “It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education …The question here concerns not the permissibility of race-conscious admissions policies under the constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.”

See:  http://www.theguardian.com/law/2014/apr/22/us-supreme-court-michigan-affirmative-action?CMP=twt_fd

             LAW SOCIETY OF ENGLAND AND WALES RESPONDS TO "JACKSON" REFORMS


Members have experienced difficulty in getting clients to authorise agreements of budgets and in some cases a ‘lack of interest’ from the judiciary in budgeting at costs management conferences, it says.

Its response has come as one law firm, PI specialist Thompsons, said the reforms have created a ‘climate of fear’ and made cross-party agreements more difficult.

The Society said a number of firms may be at risk of claims for negligence in the light of sanctions imposed for failure to comply and there is a ‘significant danger’ indemnity insurance premiums will increase for all firms this year.

Other causes for concern are that courts now place administration over access to justice, an increased risk of satellite litigation and damage to the UK’s reputation for international dispute resolution.

The Society said: ‘The climate of litigation has changed. Co-operation between solicitors on opposing sides is breaking down as no one can trust anyone not to take the slightest point. 

‘It is not putting it too high to warn that the reputation of British justice for fairness is now at very serious risk indeed as a result.’

Read more at:http://www.lawgazette.co.uk/5040350.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ130314

                                       New York Courts Face Budget Cut Crisis

 “The judges and their staff are not in ivory towers; they jump into the trenches every day and help bring resolution to critical disputes.” Written testimony of William F. Dahill, President of the Southern District of New York Chapter of the Federal Bar Association (FBA)

See:

NY Courts in Crisis.pdf NY Courts in Crisis.pdf
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                                                    Threatened Legal Aid Cuts Spur Protests        


 Thousands of criminal case lawyers are not attending courts in a number of cities in England and Wales, in protest at planned cuts of £220m to legal aid.

The Criminal Bar Association said the unprecedented action came with anger at "boiling point".

Lawyers argue the cuts could see their fees fall by up to 30% and reduce the representation available to defendants.

The Ministry of Justice said efficiencies were necessary to ensure legal aid remained "sustainable".

 Read more at: http://www.bbc.co.uk/news/uk-25597617

                                                   Indian High Court Criminalizes Homosexuality

 See:  Justice Richard Leon's  decision on the NASA mass surveillance program below: 

obamansa.pdf obamansa.pdf
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 Sticks, Carrots And Oysters

I am indebted to my friend and fellow mediator Mark Lomas QC for sending me the following email recently:

‘I have come across what I think may be one of the earliest recorded mediations in England, and conducted at the highest level. An Italian called Tito Livio dei Frulovisi wrote an account of the life of Henry V in 1437 (so only 15 years after the King’s death) called Vita Henrici Quinti Regis Angliae. An anonymous author translated it into English in 1513. It was re-discovered in the Bodleian library and a further edition was produced in Oxford in 1716. I have seen a 1906 re-edition and annotation of it by Charles Kingsford MA of St John’s College which contains the following passage:

“Two lords of Lancashire and Yorkshire quarrelled, and skirmished together till men were slain on both parties. Henry summoned them to Windsor, where they arrived as he was going to dinner. ‘By the faith that I owe to God and St George’, said the king, ‘if they have not agreed and accorded by the time I have eaten my oysters, they shall both be hanged ere I have supped’. So they agreed, and came in when the king had eaten his oysters.”’

I very much doubt that King Henry V was interested in mediation. Absolute power is unlikely to steer one in that direction. However, it seems to me that the king was, perhaps unwittingly, on to something. He was providing the parties with an incentive to settle, whilst leaving them free to determine the nature of the settlement.

There are many modern day equivalents to the king’s threat of “hanging”. In a litigation context, the usual equivalent is a trial – although that is often not perceived (at least in advance) as a mutual suffering in quite the same way as both Lords being hanged! It does serve to make the point, however, that the context in which settlement discussions take place is a central aspect of the judgment calls which parties make.

Professor Bill Zartman refers to two criteria as defining “ripeness” for mediation:
1. A mutually-hurting stalemate; and
2. An impending crisis.

Our two fifteenth century Lords exemplify this. The mutually-hurting stalemate was clearly present – they had “skirmished together till men were slain on both parties”. All that was missing, until the King’s clever intervention, was an impending crisis. This he provided in pretty unequivocal terms – settle your differences or both be hanged.

The reality of decision-making in mediation is that there are range of factors which motivate parties. Some are sticks (essentially the risks and negative consequences of not reaching a consensus), some are carrots (the benefits of resolution). What is different about the story of King Henry V is that the key motivating factor (a stick, in this case) was imposed from outside – ie by the King.

Which is, of course, exactly what the courts have sought to do in some countries with the imposition of penalties for refusal to mediate. And that was developed recently by the English Court of Appeal in the decision of PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288.

This concerned a case in which, shortly before trial, the Claimant had belatedly accepted the defendant’s Part 36 offer of settlement (the offer having been made some time earlier). In normal circumstances, this would have left the Claimant exposed to some negative costs consequences. However, the Claimant had previously offered to mediate, and the Defendant had simply not responded to that suggestion (even when it was repeated). The trial judge therefore held that the Defendant had “unreasonably refused” to mediate, and hence was not entitled to the costs award which it would otherwise have expected to receive.

The Defendant appealed, arguing (amongst other things) that silence was not a refusal. The Court of Appeal disagreed with the Defendant, noting the parties were obliged to engage actively in the process of seeking an alternative means of resolution.

The only thing missing from this story is what happened to the oysters. In the 15th century version, it was the King who ate them. In its 21st century equivalent, I like to think it was their Lordships in the Court of Appeal. In any event, it was certainly not the parties. Frankly, it rarely is.

Have a very happy Christmas, and a peace-full New Year!

                                       Implications of Myrie Judgment Discussed

At a panel discussion at the Cave Hill campus of the University of the west Indies earlier this week, panellists examined the implications of the CCJ ruling in the Shanique Myrie case in which Barbados was also ordered to pay BDS$75,000 (One BDS dollar = US$050 cents) in compensation.

(Barbados' Attorney General Adriel Brathwaite) insisted there's nothing earth shattering about the Myrie judgement and that Bridgetown has already made moves to re-train its border personnel in keeping with the CCJ ruling.

But he stressed that all member states must follow suit to make free movement a reality.

“What we were doing is that we were granting three months initial and then if you want an extension come back and give us a chance so we can get an idea in terms of what you are doing, what you are up to and if you needed the additional three months then they will give you the additional three months.

“All it means now from a particular perspective is that you want the six months and rather than having the mechanism where you need to come back to us, if we think there are issues we will go to you. It means that we will have to have some additional bodies on the ground immigration wise but that's what happens in most countries.

“So that's why I said it is really not a major issue. What might be the major issue would be the fact that we really have to change psyche of many immigration officers across the region. I have been in St Kitts going into Nevis and been asked how come I am going into Nevis so often? I have been asked that. So it is not a case where it only happens in Barbados,” he added.

But Dean at the UWI Faculty of Law, Dr David Berry believes it is important Caribbean people are educated about their rights under the Treaty of Chaguaramas. He said the treaty does not in fact grant freedom of movement.

“It grants freedom of movement in Article 46 to CARICOM Skilled Nationals, certain categories of persons. So what the revised treaty does have is another provision which says towards the goal of free movement we will try to do these things.

“So Article 45 talks about a goal of free movement and Article 46 is of one instance of free movement. So the revised treaty itself, and this was argued before the court, does not give a full blown right of freedom of movement.”

He said the regional leaders at their conference in 2007 created in a sense a right of free movement. “They created an automatic right to enter and stay for six months subject to sufficiency of funds...you will not become a burden on the public purse and that you are not undesirable. So those are the two criteria.”

But Dr Tennyson Joseph, the head of the Department of Government, Sociology and Social Work at the university said the Myrie ruling has forced the region to rethink the concept of sovereignty.

He said the region's current economic troubles have also led some governments to look inward, moving away from the vision of deeper integration articulated by the framers of the “Time for Action” report who laid the foundation for strengthening of CARICOM and the integration movement.

“Whether or not the rational that they identified which forced them to ask for a revised treaty, has either deepened or diminished. I would say that the challenges are greater. But because the challenges are greater one of the tendencies is for us to become regionalist instead of xenophobic.

“Instead of redefining sovereignty towards more regional framework, we turn inwards. Hitler faced a similar issue in his time in the first World War period, where he was facing an economic crisis and you know which choice that he took.

“Sovereignty is malleable, that the nation of citizenship is malleable. Globalisation has raised new questions about what is a citizen. What is a state and what sovereignty,” Joseph added.

Another academic, Orlando Marville, the co-ordinator, Law, Governance and Society at the UWI said political leaders must do more to build a community.

He said ordinary citizens were making integration a lived reality and it's time for the political directorate to speed up the process.

“Very often ordinary people sometimes appreciate the community that we have more than the political agents. We sometimes make promises or agree to things that they know that they are not going to do, until come back to bite them.

“We have to have the sort of commonness that exist for instance among our musicians. I have been in Suriname and heard Surinamese sing bits of songs from Kross Fyah (in Barbados). Alison Hinds sings a song from Suriname as part of her thing and these musicians all believe in our community.

“The question for me is does the Myrie case help us strengthen our understanding of community or pushes away,” he asked.



Read more: http://www.jamaicaobserver.com/news/Myrie-judgement-a-turning-point-for-integration-movement--regional-experts-say#ixzz2jWyPdFZV

                                            International Law and  The Iraq War 

                                         Another perspective on Bradley Manning 

                                         Each district to have mediation centre 

High Court takes initiatives to promote alternative dispute resolution to check pendency of cases
Saurabh Malik
Tribune News Service

Chandigarh, July 13
The Punjab and Haryana High Court has come out with a novel way to bring warring sides face to face. In a first, it is sending information on alternative disputes resolution (ADR) along with notices to the respondents in court cases.

Also, in another five months each district in Punjab and Haryana will have its own mediation centre where litigants come together and sorts out the differences right from property and matrimonial disputes to commercial disagreements. As of now, Punjab has 12 mediation centres and Haryana 16.

A colloquium on mediation this morning revealed that judges can suo motu refer the adversaries to mediation. Their consent in the matter of mediation is not necessary. Moreover, disputes can be referred to an arbitration tribunal during the course of proceedings before a civil court without prior agreement.

The fact assumes importance as the general impression even among academicians is that a prior agreement between the parties is a must for referring matters to an arbitration tribunal.

Going a step further, Chief Justice Sanjay Kishan Kaul said they were, in fact, gearing up to tell the people about the concept of ADR in their own language. "We will soon be sending information in Gurmukhi about lok adalats, mediation and other forms of ADR along with the notices," Chief Justice Kaul said.

The development is significant as the High Court is now informing the warring sides that there are other cost-effective and speedy ways to resolve disputes without knocking at the doors of the courts and burdening the already weighed down justice delivery system.

Giving reasons behind the stress on ADR, Chief Justice Kaul said: "In the US, 97 per cent of the cases are resolved through ADR. But in India, every case is going through the process of trial even if the dispute was not worth the time and effort".

The colloquium was organised by the Punjab Legal Services Authority by sensitising both the Bench and the Bar on the benefits of ADR for reducing the pendency of cases. Among others, Justice Arjan Kumar Sikri of the Supreme Court was also present.

Justice Hemant Gupta of the Punjab and Haryana High Court said mediation had more to do with emotions than law. Also the Executive Chairman of UT State Legal Services Authority, Justice Gupta said the success of mediation was in its exceptional trait of offering a hearing to the aggrieved. "It not only takes the grievance away, it also helps the aggrieved to give a vent to his pent-up feelings".

A judge of the Punjab and Haryana High Court and Executive Chairman, Haryana State Legal Services Authority, Justice SK Mittal said ADR could grant relief to parties which was not possible within the parameters of law set by the statute.

Justice Jasbir Singh of the Punjab and Haryana High Court, who is also the Executive Chairman of the Punjab Legal Services Authority, said mediation, a way of resolving disputes between two or more parties with concrete effects, also brought to an end further litigation as it ended up in a settlement.

See: http://www.tribuneindia.com/2013/20130714/punjab.htm#1

Top

                                                                  UK SUPREME COURT ON YOUTUBE

 

Legal aid protest: objection sustained

If the law is to apply to the mighty and the meek in the same way, the real question is what weapons ordinary people can call on to fight their corner.

The Transforming Legal Aid consultation provides the coalition's contemptuous answer. The plans would: pare back provision for experts to be called in evidence; mandate justice that gets arbitrarily more cut-price as a case drags on; and make pesky judicial reviews of bad administrative decisions too financially risky to take on, for any lawyer who is not both saintly and well-heeled. Perhaps most bizarrely, it proposes to do away with client choice in favour of allocation by diktat.

 

Illinois State Bar: Solos More Likely to be Unethical, Sanctioned

The Illinois State Bar Association has released two reports recently that reflect negatively on solo or small firm attorneys. One report (loosely) ties student loan debt and small firm economics to unethical conduct. The other shows that the vast majority of disciplined attorneys are solo or small firm practitioners.

Are the reports reflective of a problem - or is the bar way off base?

Last month, the ISBA released a questionable report on the impact of student loan debt on the legal profession. The report posited that the heavy student loan burden would discourage public interest jobs. It also noted that anecdotal evidence indicated an increase in ethics violations among lawyers with heavy debt loads. And since more recent grads and unemployed attorneys are hanging shingles, solo firms present an increasing risk of unethical conduct.

For the public interest argument, they’re forgetting one key factor: loan forgiveness, grants, and other perks for public service. Recent grads, if they have a choice in employers, usually are presented with two options: low-paying private sector or low-paying public service. Private sector jobs don’t provide loan forgiveness after ten years of minimum payments. Public interest jobs do.

As for that other odd argument about unethical conduct, we’d have a hard time outdoing Carolyn Elefant’s disemboweling of such a logically flawed argument, but the key points are this: anecdotal evidence means little, especially when actual evidence from the Attorney Registration and Disciplinary Commission doesn’t back the theory. It’s a bit reckless to characterize solo firms in this way, and potentially scare the public, when you have only loose data to back your statements.

Recent grad or over-extended BigLaw partner, financial stresses come to many. Just because one has student loan debt doesn’t mean they are more likely to steal from clients. That’s a bit of a jump, isn’t it?

The other report shows that nearly three quarters of all sanctioned attorneys were solos. Nearly 90 percent were in solo or small firms. It’s an interesting statistic, though it is based on a small sample size of 156 sanctions against 155 attorneys (out of nearly 88,000 members of the bar).

This doesn’t necessarily mean that solo or small firm attorneys are more likely to commit violations. For one, we’d be curious to know what percentage of attorneys practice in solo or small firms (is the percentage disciplined disproportionate to their overall presence in the bar?). Also, small firms tend to cater to more consumer-oriented practices, which, of course leads to more consumer complaints. Finally, solos also often have less resources to make aggrieved clients whole, or to fight bar discipline.

It’s been said before: there are lies, damn lies and statistics. The problem is, when it comes to this report, which is it?

Read it all at : http://blogs.findlaw.com/strategist/2013/04/illinois-state-bar-solos-more-likely-to-be-unethical-sanctioned.html?DCMP=CCX-TWLP

 

                                                  The Stain On Guantanamo    

There are still 166 men there — virtually all of them held without charges, some for more than a decade. More than half have been cleared for release but are still imprisoned because of a law that requires individual Pentagon waivers. The administration eliminated the State Department post charged with working with other countries to transfer the prisoners so those waivers might be issued.

Of the rest, some are said to have committed serious crimes, including terrorism, but the military tribunals created by Mr. Bush are dysfunctional and not credible, despite Mr. Obama’s improvements. Congress long ago banned the transfer of prisoners to the federal criminal justice system where they belong and are far more likely to receive fair trials and long sentences if convicted.

Read more at:http://www.nytimes.com/2013/04/26/opinion/the-guantanamo-stain.html?smid=tw-share&_r=0

                                    DNA Owned By Corporations?


Even though they’ve been in our families since the dawn of man, our genes do not belong to us. They’ve been claimed by companies that hold patents on the DNA from our cells. Over the past 20 years, at least 41 percent of our genes have become the intellectual property of corporations. These patent claims contradict an intuitive sense that our DNA is no less ours than our lungs or kidneys. More importantly, these patents, covering thousands of human genes, restrict our doctors’ ability to look at our DNA and plan ahead for our medical treatment.

On April 15th, there is a chance for the United States Supreme Court to correct this genetic injustice and remove the limitations to our DNA. The court is reviewing Association of Molecular Pathologists (AMP) v. Myriad Genetics, in which a federal court ruled last year that human genes can be patented. Myriad Genetics received patents in the 1990s for the exclusive right to examine all isolated DNA that contains the BRCA1 and BRCA2 genes. The implications for our health could not be greater.

Women who carry mutations of BRCA have a much higher risk of breast or ovarian cancer, jumping from a 10 percent lifetime risk to an 85-90 percent chance of cancer. Because of Myriad’s patents, a woman’s doctor cannot look at her genetic code in the BRCA genes, since as soon as blood is drawn and DNA is isolated from your body to examine the BRCA genes, it is the property of Myriad Genetics and only Myriad Genetics can screen for these mutations.

This monopoly means that any woman in America who wants to have her DNA tested for these potentially life-threatening mutations has no choice but to use the services of Myriad Genetics, without the possibility of a second, independent test, or a more thorough test.

Read more at : http://www.aclu.org/blog/free-speech-technology-and-liberty-womens-rights/voices-human-gene-patents-its-time-free-our

                          Pre-Trial Detention In Nigeria Subject Of Reform                  

Nigeria has a very large problem with excessive pre-trial detention. Currently, an estimated 70 per cent of the estimated 45,000 prisoners in our jails are awaiting trial. One in five of that number has been waiting for longer than a year.

The proposal  before parliament ( an amendment to the Criminal Justice (Release from Custody)(Special Provisions) Act, 2004) would require the Comptroller of Prisons to apply to the Chief Justice of Nigeria and chief judges of states for release orders in respect of detainees who are illegally held, or held for an excessive length of time without trial, making fairly certain a rarely-used process already on the books that currently in theory requires the intervention of a chief judge (either federal or state). If it passes into law, some detainees who have been held for excessive periods may get released. But this would just be tinkering with a broken system. 

See: http://www.opensocietyfoundations.org/voices/why-piecemeal-approach-criminal-justice-reform-nigeria-wont-work

                                  Maryland Legislators Vote To Abolish Death Penalty

ABA Journal Reports:

By a 82-56 vote, the Maryland House of Delegates voted Friday to eliminate the state's death penalty.

The state's senators approved the abolition of capital punishment last week, by a 27-20 margin. Gov. Martin O'Malley must still sign the bill into law before it is final, but he has been a staunch supporter and lobbied in its favor, reports the Washington Post.

The state is the 18th, and the sixth in six years, to decide that it is time to end the death penalty. Its last execution took place in 2005.

The ultimate punishment has been in place since colonial times and the first recorded execution was in 1638, notes the Baltimore Sun.

Although O'Malley is expected to sign the bill into law, it is still possible that capital punishment could be reinstated by the voters, if a ballot measure is initiated for the 2014 election, the newspaper points out.

The Source : http://www.abajournal.com/news/article/maryland_lawmakers_abolish_death_penalty/

 

                                        Chadian Dictator Faces Justice

Chandra Lekha Sriram  filed this article for Aljazeera.

On Friday, after more than two decades, proceedings against former Chadian dictator Hissene Habre begin in Senegal, with the opening of investigations by the Extraordinary African Chambers in that country.

This is indeed an extraordinary event for at least two reasons. First, it marks the first time in which a national court anywhere has tried the former head of state of another country for serious international crimes. Second, it represents (perhaps) an alternative to the increasingly static debate over international justice in Africa, represented most starkly by the resistance not only of Sudan, but of many African States Parties to the Statute of the International Criminal Court, to the arrest warrant for Sudanese President Omar al-Bashir. What we might be seeing is a shift from the narrative of Habré as an African Pinochet, and international justice and the ICC as neocolonial, to the fruition of one possible model for "African solutions to African problems".

This process has been a long time in the making, and has a long way to travel yet. Habre fled Chad for Senegal in 1990, following a brutal reign in which Human Rights Watch claims that 1,200 were killed and 12,000 tortured, and a domestic Chadian commission of inquiry claims that as many as 40,000 were killed. In exile in Senegal, Habre weathered many attempts to initiate him both at home and abroad, beginning with efforts in Senegal in 2000, which were strongly resisted by then-President Abdoulaye Wade. In 2005, with complaints filed in Belgium under its universal jurisdiction legislation, Wade rejected Belgian requests in 2006 for Habre's extradition, and in the midst of heightened rhetoric at the African Union (AU) about the perceived imposition of international justice upon African States and particularly targeting African leaders, the Belgian request became a political and legal football. The African Union recommended that Senegal pursue an "African solution" and prosecute Habre on behalf of Africa.

Read complete article  at :http://www.aljazeera.com/indepth/opinion/2013/02/201329142812801421.html

                                   EX CIA Agent Jailed for Exposing Torture? 

                                                        Pro Bono Rewards and Challenges

Over the years, and especially during the last several decades, pro bono legal service has taken many forms.

A lawyer files an insurance claim for a neighbor after a fire. Two attorneys help a group of Vietnam veterans get recognized as a nonprofit by the IRS. The general counsel of a corporation joins a charity board. A large firm, better known for its work on mergers and acquisitions, files a death penalty appeal. A local tax lawyer runs for the school board.

Once perceived and defined as “charity work” governed solely by personal conscience, pro bono has evolved into a professional responsibility and a powerful force inside the practice of law.

In a 2004 study of pro bono politics, Scott L. Cummings of UCLA School of Law described pro bono as the “dominant means of dispensing free representation to poor and underserved clients,” eclipsing even tax-supported institutions.

Pro bono has morphed in form from every conceivable direction—from an informal relationship with clients and their problems to a more affirmative obligation of the profession.

Read more at: http://www.abajournal.com/magazine/article/working_for_free/

 

Sri Lankan Parliament Impeaches Chief Justice

 

NEW DELHI — Defying a court order, Sri Lanka’s Parliament voted overwhelmingly on Friday to impeach the nation’s chief justice, a significant step in a worsening showdown between the legislature and the judiciary that has alarmed democracy advocates and many foreign governments.

 

Follow @nytimesworld for international breaking news and headlines.

President Mahinda Rajapaksa must now decide whether he is willing to take the last step in the impeachment process and dismiss Chief Justice Shirani Bandaranayake of the Supreme Court, who was seen as a Rajapaksa loyalist until September, when the court struck down provisions of a law that would have given greater power to the government’s economic development minister, Basil Rajapaksa, who is also the president’s brother.

The chief justice’s fall from grace since that ruling has been dizzying, with the state-controlled media sharply criticizing her. Impeachment proceedings began in November.

A parliamentary committee issued a guilty verdict against her in December, saying she had misused her power and failed to adequately declare her assets. Last week, an appeals court annulled the verdict and forbade further action by the Parliament against Chief Justice Bandaranayake.

The Parliament’s willingness to ignore the court’s ruling and impeach the chief justice anyway set the nation up for a possible constitutional crisis. Saliya Peiris, a lawyer for Chief Justice Bandaranayake, told The Associated Press that his client would not recognize the impeachment and that her next step would be announced later.

Since President Rajapaksa dominates the Parliament, the impeachment effort is widely seen by many democracy advocates as an effort by the president and his family to further consolidate power and eliminate any impediment to their almost complete control.

“The entire impeachment process is clearly politically motivated as a punishment to the chief justice for daring to apply the constitution in a way that went against the Rajapaksa administration,” Alan Keenan, of the International Crisis Group, said in an interview.

The parliamentary committee found Chief Justice Bandaranayake unfit for office on charges of failing to disclose details of 20 bank accounts and intervening in cases before the court in which she had a financial interest. She was also alleged to have sought to protect her husband from corruption charges.

She had protested the rapidity of the parliamentary proceeding and her inability to confront or cross-examine her accusers.

Lawmakers voted 155 to 49 on Friday to impeach.

On Wednesday, Victoria Nuland, the United States State Department spokeswoman, said that the department had “serious concerns about the actions that were taken to impeach the chief justice” and that the proceedings raised “serious questions about the process and government pressure on the judiciary.”

Read more at: http://www.nytimes.com/2013/01/12/world/asia/sri-lankan-parliament-impeaches-chief-justice.html?smid=tw-nytimesworld&seid=auto&_r=0

 

Mediation and costs sanction: further court guidance

Adam KneeAuthor page »

Introduction

Litigation can be a very expensive and time consuming process that can be a real drain on a party’s resources. In some cases, the costs of fighting litigation and recovery of those costs can become as important to a party as winning the claim. Mediation is generally seen as a successful method of resolving disputes cheaply and quickly. The Courts are very keen to encourage parties to mediate disputes and often penalise those who refuse an offer of mediation. However, a failed mediation is expensive for both parties and can be a real distraction for the parties. In recent cases, the Court have reviewed the circumstances where a party may legitimately refuse to mediate.

Background

The general rule when determining who should pay the costs of litigation is that the losing party should pay the victorious party’s costs. However, the Court retains a broad discretion to reduce the amount of costs a victorious party can recover from the losing party or, in some cases, make a costs award against the victorious party to penalise behaviour that is deemed unreasonable. One factor that the Court is likely to take into account is whether the parties attempted to settle their disputes through mediation. A mediation is a meeting between the parties where they are encouraged to discuss their dispute on a confidential basis with the assistance of an independent third party (the mediator) to see if a deal can be done to settle the case without the need to go to Court. The mediator’s role is to assist in these settlement discussions, to test the strength of the parties’ legal positions and to build common ground between the parties so that a settlement can be achieved. The use of mediation to try to resolve disputes has received strong judicial approval and there have been a number of cases where Judges have penalised parties that have refused to attend a mediation by not awarding them all of their costs of the litigation or even making a costs order against them.

Recent Updates

However, recent case law demonstrates that it should not be assumed that a refusal to mediate will automatically result in a costs sanction against the refusing party. In an article in May 2012, we reported on the Court of Appeal’s decision in Swain Mason –v- Mills & Reeve (A Firm) (2012), which can be found here. In the Swain Mason case, the Court of Appeal recognised that there were circumstances when a party should not be penalised in costs for refusing an offer of mediation such as where the refusing party reasonably believed that it had a very strong case. The recent decision in ADS Aerospace Ltd v EMS Global Tracking Ltd (2012) is a further example where the Court is prepared to review the circumstances surrounding a refusal to mediate and consider whether the refusing party has acted unreasonably and should be penalised in costs as a result.

The Claimant (C) brought a claim for over $16 million in damages for alleged breach of an exclusive distribution agreement by the Defendant (D). At trial in July 2012, the Judge found in favour of D on all the key issues. As a result, D claimed its costs, which were approximately £877,000, of defending the proceedings.

Read more at: http://www.lexology.com/library/detail.aspx?g=0ae5cf61-11f9-4314-b206-fa26d6032993

 

Collaborative law gives control in divorce

Monday 7 January 2013 9:01 AM

Choosing a collaborative approach to divorce gives control back to couples and is more likely to achieve an acceptable settlement all round, according to a family solicitor in Stoke on Trent.

The specific approach to divorce, imported from the United States and gathering more traction now in the UK, sees both parties agree to discuss division of assets, financial settlements and arrangements for children in a non-confrontational way, and without involving the courts.

Catherine Edmondson, a long-time Staffordshire lawyer, who has recently joined family law specialist Woolley & Co working from her own office in Stoke on Trent, believes this not only saves couples money but also ensures they stay more firmly in the driving seat of the process.

“A lot is said about the cost of divorce, particularly in times of economic hardship, but the reality is it need not be expensive and a collaborative approach to divorce can help with this,” said Catherine, originally from Lancashire but now based in Stoke on Trent, serving clients across Lancashire, Cheshire, Staffordshire and Derbyshire.

“Apart from the obvious advantages of getting people to sit down calmly to try and reach a solution, a collaborative approach to divorce gives control of a case back to the parties concerned rather than them being at the mercy of the courts process: dates, times, hearings, costs – none of which we can control. This is where costs can spiral.

“It has proven again and again that better agreements can be reached. By better, I mean agreements that both parties sign up to and are relatively happy with. The same cannot be said of many court imposed orders, which can lead to ongoing problems and one or other party potentially failing to comply. And while you do not have to have a collaborative approach to reach an out of court agreement, it does almost always guarantee that outcome in my experience.

“But it is that element of control that is gained also that is priceless to many people. You are more in control of your own destiny”

Catherine, who worked for some time as a legal adviser to the Plain English campaign, joins a 20-strong team of family law specialists at Woolley & Co working from home offices across England and Wales but sharing central services and the support of each-other’s expertise. Services are tailored around the needs of clients rather than office working hours.

Andrew Woolley, managing partner with Woolley & Co, said: “I am delighted someone of Catherine’s calibre and experience is joining our growing team. Clients across the country are seeing the benefits of our flexible approach and Catherine’s expertise in collaborative law is an added bonus.”

Catherine can be reached on 0845 680 4324, at catherine.edmondson@family-lawfirm.co.uk or via the website www.family-lawfirm.co.uk

 

Bar president lashes Gov't over justice system

BY PAUL HENRY Crime/Court Desk co-ordinator henryp@jamaicaobserver.com

Tuesday, January 08, 2013 

 

BAR Association President Ian Wilkinson yesterday lashed the Government over the failures of the justice system, noting that successive administrations have demonstrated a lack of will to fix the problems.

"Successive Governments talk about lack of resources, but it's not about lack of resources, but mental and political will," said Wilkinson.

WILKINSON… we are at the edge of an abyss and we seem to accept death as a daily reality
1/1

His comments came as he addressed the court on behalf of the private bar during yesterday's opening of the Hilary Term of the Home Circuit Court.

Wilkinson bemoaned the fact that the justice system has been allocated less than one per cent of the national budget, and noted that justice should not be a "football of politics".

The circuit started with 595 cases -- 346 of which are murder.

Wilkinson, in addressing the issue of backlog, said that the high number of criminal cases shows that the State has failed the people. At another point, he noted that the justice minister had been give "basket to carry water".

According to the attorney, there is an umbilical cord between crime and the justice system, and that "we are at the edge of an abyss and we seem to accept death as a daily reality".

He urged his colleagues to speak up about the ills plaguing the system, and not be afraid of repercussions, while saying that the country's justice system is at a crisis point.

Justice Carol Beswick, who opened the circuit, said she's sure that all present would agree with 90 per cent of Wilkinson's opinions, as she urged him to continue to "speak as his heart leads".

The High Court judge said that there will be a workshop this month on reducing the backlog of cases, which, in both the High Court and the magistrate's court, numbered above 30,000. She said that while Chief Justice Zaila McCalla was working to resolve the issue, "other solutions do not require money".

"What is required is an interest in getting the job done," Beswick said.

She said the problems are multifaceted, noting that things such as providing medical and post-mortem reports in a timely manner also contribute to trials not being able to start on schedule.



Read more: http://www.jamaicaobserver.com/news/Bar-president-lashes-Gov-t-over-justice-system_13339919#ixzz2HRATknCN

         Below: One response to long delay in bringing accused persons to trial

 

Justice Campbell applied rules of natural justice

Tuesday, November 29, 2011 
 

 

Dear Editor,

I refer to criticisms of Justice Campbell, a judge of the Supreme Court, by lawyers on both sides by what in substance his adj sine die (adjourn without date) of an accused charged with murder who has not been tried for upwards of 11 years. It is the duty of every court to dispense justice and nothing but justice, and I submit that is exactly what Mr Justice Campbell did. In this context, he applied rules of natural justice which have been declared by Jamaica's Court of Appeal as nothing more than fair play (Fox, JA in Aris v Chin, CA, 12 JLR, 929). This is buttressed by the Charter of Fundamental Rights and Freedoms (Constitutional Amendments) Act, 2011. Section 14 (3), which says, among other things which are not relevant:

"Any person who is arrested or detained shall be entitled to be tried within a reasonable time and shall be brought forthwith or as soon as is reasonably practicable before an officer authorised by law, or a court, and released either unconditionally or..."

I further submit that not only was Justice Campbell's decision in accordance with the rules of natural justice and the exercise of his constitutional power to release the accused if he was not tried within a reasonable time, but that it is fair to criticise the learned director of public prosecutions for not exercising her constitutional duty to enter nolle prosequi in all the circumstances, instead of attacking the judge for doing what was justified under the Common Law and the Constitution. And I cannot understand a defence lawyer criticising a judge for freeing a client, instead of the director of public prosecutions for not freeing the client. I do not think it is too late for the director of public prosecutions to enter nolle prosequi.

I have been in the justice system professionally for very close to 60 years and I have never seen a more courageous judge do what is right, although there is no precedent. I have known Mr Justice Campbell, since he was clerk of court in Mandeville, as a fair and just person and so I am not surprised that the world can say the same by his conduct in this matter.

Owen S Crosbie

Mandeville, Manchester

oss@cwjamaica.com



Read more: http://www.jamaicaobserver.com/letters/justice-campbell-applied-rules-of-natural-justice_10278857#ixzz2GvzFG2b4

 

26Acts Lawyers Can Do to Make the World, and Our Profession, Better

 By Andrew Chow, JD on December 21, 2012 9:20 AM| No TrackBacks

The hashtag #26Acts has been trending on Twitter this week -- a call to action to perform 26 acts of kindness in honor of the Connecticut school shooting victims. Lawyers would do well to join the cause, especially today, the one week anniversary of the tragedy.

The #26Acts idea came from NBC News correspondent Ann Curry, who posted it on Facebook and Twitter last weekend. Within days, hundreds of thousands were tagging social-media posts with #26Acts to share the good deeds they'd performed all around the world, NBC News reports.

While lawyers are often reviled as ruthless litigators (ever been called a shark?), there are many simple acts of kindness we can do every day to make a positive impact. Here are #26Acts lawyers can do to make the world, and the legal profession, better:

 1.Do pro bono work for children. Even just a few hours working with a local nonprofit, such as the Alliance for Children's Rights in Los Angeles, can make a huge difference.

 2.Keep your "Rambo lawyer" tendencies in check. In short, don't be a jerk, and treat the opposing party with respect.

 3.Recognize and respect your staff. Remember, a simple "thank you" goes a long way.

 4.Ditto for all the "little people" in your life. Thank the janitor who cleans your cubicle, and even the guy at the drive-thru window whom you see every night after a long day at the office.

 5.Really listen to your clients. And not just for facts that will help in litigation. Get to know them as people, and it can work wonders for your lawyer-client relationship.

 6.Ask your client what's going well in his/her life. You don't always have to focus on the negative. Try starting your next conversation by focusing on something positive.

 7.Give money to charity. Even with law firm starting salaries declining, lawyers still make more than most, and can afford to give a little away.

 8.Be upfront about a potentially bad case. It's not easy to walk away from a potential client. But if you truly think the client has a stinker of a claim, let the client know and don't just take the case to rack up your bills.

 9.LOL. Laughter is infectious, yet it is seldom heard in a law office. Tell a joke and lift everyone's spirits.

 10.Let someone merge into traffic. We all know you're important and that your time may be worth $1,200 an hour. But take your foot off the accelerator and cut back on the road rage.

 11.Leave a big tip. So what if the furniture delivery guy, pizza guy, or salon worker was late or did a bad job. Let it go. It's Christmas after all, so give a tip if you can afford it.

 12.Mentor a child. Groups like Big Brothers Big Sisters come to mind, and there are many others like them around the country.

 13.Mentor a new attorney. There are hordes of struggling unemployed (and underemployed) lawyers out there. Take a young trying-to-be-an-attorney under your wing and be encouraging.

 14.Give someone a ride home. If you work your staff to death with long hours, arrange for a ride, or even drop them off on your way home.

 15.Pick up the bill from time to time. For legal questions you can quickly answer, just give your advice and tell the client it's on the house. Those 15 minutes of free work can lead to a clien's lifetime loyalty.

 16.Help out at a court self-help center. If your court has a self-help desk, volunteer some time to help laypeople who don't know how to navigate the legal system.

 17.Let your staff leave early. It doesn't have to be often, but chances are good your staff will work harder if you don't overwork them.

 18.Serve meals at a soup kitchen. Nothing makes you appreciate what you have more than helping people who have so little.

 19.Give a free lecture. Everyone could use a little help understanding the law. Set up a free talk at a local community center to share your experiences and expertise.

 20.Donate old office equipment. When you upgrade to a new laptop or better copier, don't throw the old one away. If it still has some life in it, donate it to a local nonprofit.

 21.Volunteer for a local nonprofit. It doesn't necessarily have to be legal work. Your lawyerly skills can be put to good use on nonprofit boards and in other ways too.

 22.Volunteer to serve on a government commission. Your local library board, parks commission, or even a sister-city committee can benefit from your help. Reach out and see how your skills can be put to use.

23.Give someone a compliment, even if it's a white lie. Sometimes it's OK to stretch the truth in order to brighten someone's day, like saying nice things about a new haircut or a homemade meal.

24.Shovel someone's driveway. Lawyers know that slippery surfaces can be a liability. So if you have elderly neighbors, make sure their walkways are cleared.

 25.Treat yourself. Being kind to yourself is also a good thing. Give yourself some time off so you can recharge. When you get back, you'll be more ready to take care of your clients.

26.Tell your family and friends that you love them. Like everyone else, lawyers are often guilty of not doing this enough. There's no time like the present to make amends.

 

FindLaw writers Andy Lu and Deanne Katz, Esq. contributed to this post.

 

 

Law Practice Can Trigger Stress Disorder, Says Attorney Who Now Works as Therapist

Posted Mar 17, 2010 1:04 PM CST
By Martha Neil

A sense of impending doom is a common feeling for many attorneys in practice: From the mistake made when drafting a document or taking a deposition to a transgression that you may not even be aware of yet, there's always something lurking in your consciousness to produce a feeling of being "in trouble."

For him personally, writes Will Meyerhofer, a former BigLaw associate who now works as a psychotherapist, "it got to the point for me, at Sullivan & Cromwell, that I felt my entire body clench in preparation for attack just walking through the doors of 125 Broad Street and stepping into that elevator." His post, however, indicates that law practice, in general, rather than any particular law firm, is the cause of such stress.

Such feelings of constant anxiety, he says in a People's Therapist post, can rise to the level of a diagnosable case of post-traumatic stress disorder, which is characterized by a state of hyper-vigilance to potential attack, a deadening of emotions and flashbacks or nightmares concerning stressful situations.

Creating a "safe zone" within a difficult work environment, so that you can let your guard down and relax, can make a critical difference, Meyerhofer says. (He also advises finding another position if a job is too stressful.)

Hat tip: Above the Law.

 

Legal Ethics

Judge Docked 5 Days Pay Reportedly Threatened Jail re 24 Ringing Phones, Jailed 2 for Slamming Doors

Posted Dec 17, 2012 2:01 PM CST
By Martha Neil 

A Maryland judge has been docked five days of pay for summarily holding defendants in his court in contempt, in a consent to discipline approved Friday by the state court of appeals.

Baltimore County District Judge Norman R. Stone III, 54, must take the unpaid time off within 30 days, the order (PDF) states.

The Baltimore Sun (sub. req.) reports that Stone summarily fined 24 individuals and threatened them with jail concerning ringing cellphones. At least two others got jail sentences for slamming doors—in one case, the father of a defendant who had just been sentenced himself got 30 days over the door issue, although the man apologized. That sentence, which was to begin immediately, was vacated on appeal.

The judge's lawyer said Stone should have given the individuals a chance to defend themselves before they were sentenced. "He takes this all very seriously, obviously. He realizes he has made some calls that were out of the strike zone, if you will," said attorney David B. Irwin. "He'd been 14 years without any sanctions."

Under a new policy, Stone now asks those in his courtroom either to turn off their phones or step outside.

 

 

What Happens To Supreme Court In Obama's Second Term?

by NPR Staff

November 11, 2012 3:00 PM

Four of the current U.S. Supreme Court justices are over the age of 70, and many expect at least one appointment during Obama's second term.

There has been vigorous public debate this election cycle about the Supreme Court; from the Citizens United case to the Affordable Care Act.

As we look ahead to the next four years, it's not just Congress that will undergo change. Four of the nine Supreme Court justices are over the age of 70, meaning there's a real possibility for at least one new court appointment during President Obama's second term.

The two most likely justices, says NPR legal affairs correspondent Nina Totenberg, are liberal justices Ruth Bader Ginsburg, who is 79, and Stephen Breyer, who is 74.

If they were replaced by somebody President Obama would pick, it would not change the ideological makeup of the court dramatically," Totenberg tells Guy Raz, host of weekends on All Things Considered.

If one of the two conservative justices over 70, Antonin Scalia and Anthony Kennedy, both 76, were to step down, however, you would likely see an intense battle over the appointment, Totenberg says.

"The court is split on so many issues 5-4, currently with the conservatives dominating," she says.

So who might be on Obama's short list for an appointment? Totenberg says if Ginsburg steps down, she doesn't see the president appointing a male to replace her; this would put the court back to a male-to-female balance of 7-2.

One woman mentioned often, Totenberg says, is California Attorney General Kamala Harris. But Harris also has some political prospects, and possibly a gubernatorial run.

Possibilities for male appointees are Paul Watford, on the Ninth Circuit Court of Appeals, and Sri Srinivasan, who was nominated to the D.C. Court of Appeals, but has yet to be confirmed.

Whether or not any of those justices will step down during Obama's second term no one can know for sure, and the lifetime position of a Supreme Court justice is not something given up lightly, Totenberg says.

"These people love this work ... it's who they are," she says. "So in some ways, they view it as stepping down from their life, and the president's desires often don't come first."

 

                                                         RESTORATIVE JUSTICE IS THE LAW 

 

Court reform, the Italian way?

Maurits Barendrecht

Professor of Private Law and Academic Director Tilburg University and Hague Institute for Internationalisation of Law

Aug 21 2012

In Italy, a good wine matures faster than a court case. Reform is on its way, though, as it is in Portugal, Greece and many other countries with ineffective court procedures. Most reform is managerial and imposed: the IMF and the EU see to it that courts in medium sized towns are closed and judges get targets for writing decisions on time. In its August 16 edition, The Economist has doubts. Rightly so, because doing the old things more quickly is not going to solve the problems. The main challenge is to let judges innovate their court procedures so that they deliver more justice at lower cost.

A recent presentation by one IMF expert reveals the current orthodoxy in judicial reform. It recommends closing ‘justices of the peace’ courts, just as banks once did away with their branch offices. Next, judges get targets of 6 or 12 months to render a final decision. If judges manage their cases more actively, giving interim decisions rather than waiting for the case to mature, they can solve divorces, debt issues and commercial disputes much faster. So courts also get management tools, better IT systems and more data that court managers can monitor.

The reasons for these reforms are not that politicians or lawyers badly want it. The IMF and the EU want their money back and the economy to grow. Courts are crucial for this. They make people pay their debts on time. Italy’s famous family businesses will grow much faster if they get a license to operate from the government, instead of paying protection money to their equally famous “security sector” entrepreneurs. The Economists quotes the Bank of Italy saying that inefficiency in civil justice costs Italy as much as 1% of annual GDP.

Managerial reforms monitored by international institutions are not a bad thing. Experts agree that a lack of incentives is the main reason why courts are not very good at solving people’s actual problems on time. If court bosses have to report performance data to the EU and the IMF, that adds to incentives, at least temporarily.

Lasting incentives remain a challenge that has to be addressed. Publishing performance data for each individual judge is effective, as is tying court budgets to actually having solved cases, not pushing them to a next stage in proceedings. A very simple version is to pay the court if it can show a final settlement or a judgment, but more sophisticated systems for paying courts where courts also receive money for clarifying the law are possible as well.

But the major problem is that civil justice procedures are old fashioned and do not use the latest insights on how conflicts between people are best solved. Have you ever met a judge at a party who recommends you to come to his court because it delivers top quality service at an affordable price?

Mediation is a case in point. Italian law now even makes mediation compulsory as a first stage for most disputes, acknowledging that it is much better than starting civil justice proceedings. Lawyers were the only ones to object.

The Italian wholesale solution is also a sign of a fundamental design flaw in court systems. In most countries, judges are not responsible for their own procedures. They just follow the Code of Civil Procedure, which can be 100 years old or more, and ossifies a system in which lawyers, notaries, bailiffs, judges and other members of the legal profession have protected positions. Such a centralistic approach is an enormous barrier for court innovation, which has to come from simplifying procedures, online interfaces between judges and clients, integration of elements of mediation, smart designs of court hearings and judgments which are easy to write and understandable for clients.

Specialization is another key to successful court reform. All over the world, specialized courts perform better than courts of general jurisdiction. Neighbour disputes, debt issues, conflicts in commercial supply chains or personal injury cases require a different treatment.

Australia is a country with some interesting court innovations. Accidentally, it is one of the countries where judges can design their own procedures, within broad terms of reference set by the legislature. Perhaps the Italians could give this a try as well. After all, Italy is famous for its great design and innovation skills, always invigorating traditional products such as chairs, coffee, cars … and courts?

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 Opportunities Under Civil Procedure Rules 2000

The  Therapeutic Court

I could go on and on citing examples of situations where the CPR empowers and manages the actions of the parties in such a way that the spirit of dialogue and settlement is promoted. It is important that this spirit of dialogue be distinguished from early capitulation or unwillingness to stand up for what is right. The importance of the growth of the new culture is to make conflict management a central part of the settlement of disputes rather the facilitation of a fight to destroy the opponent. The court that facilitates a settlement or the acceptance of a ruling, done in circumstances where litigants feel that they had an equal opportunity to voice their case, before an attentive and respectful court which controls but does not bully the participants, can go a long way in changing a person’s view of the society in which they live and enhancing their appreciation of the various peaceful approaches to settling conflicts. No one can argue that these are not laudable goals in the present day Caribbean society. This can be considered therapeutic to the litigant who appreciates the process.

In a recent article published in the Commonwealth Judicial Journal Vol. 16 no 3 June 2006, Dr. Michael A King a Magistrate of  Perth (Western Australia ) Drug Court, addresses the issue of  Therapeutic Jurisprudence in the Commonwealth. Although the article is pitched towards the climate of the criminal jurisdiction there is much to be recommended to the civil court from the ideas of Dr King.  Dr King writes:

    “Therapeutic jurisprudence can also inform individual judicial officers as to ways of interacting with people in court so as to promote justice system goals. Judicial officers sitting in a problem solving court program are an obvious example. But many of the principles are also relevant to judicial officers sitting in a general list. For example research in procedural justice emphasises the value litigants place on the fairness of the process- they are more likely to respect the outcome, even if adverse to them, if they feel they have been given a fair hearing. A therapeutic approach emphasises the values of voice, validation and respect. Voice is providing a supportive environment for a litigant to present his or her case to an attentive judicial officer while validation is the judicial officer showing that he or she is listening and taking the litigant’s case into account. Respect requires a proper manner of address and demeanour to a person in court. By applying these principles in judging, a judicial officer can help to promote greater levels of compliance with court orders.”

Dr. King also stresses the importance of judicial officers being sensitive and aware of underlying problems which could make it difficult to resolve a dispute which is before the court. “ In such a case a recurrence of legal problems may occur if the underlying issue is not addressed.” Thus judicial officers would do well to learn from professionals in fields such as psychology as to ‘ what works’ in human communication and motivation. I agree with Dr King’s conclusion that Therapeutic Jurisprudence provides a useful way of  analysing  law,  legal processes and  the actions of justice system personnel in terms of their impact on the wellbeing of those affected by it.  According to Dr King such an analysis can provide suggestions for reform. It can also assist judicial officers and lawyers in their duties and help them to facilitate a more comprehensive resolution of legal problems and greater satisfaction with the justice system.

At the very beginning of this article I argued that there was theoretical support for the contention that legal systems have made a concession to approaches other than strict legal rules for the resolution of disputes. This is done in the form of various kinds of alternative dispute resolution. In our case that main form is mediation. But the wider view is also important. The courts and legal systems are organs for conflict management. Enhancing their usefulness in no way detracts from the importance of the law itself. But we have to recognize that in most western societies people are turning away from the strict legal and institutional approaches and are seeking more therapeutic solutions. Alain de Vulpian( 2005)  a sociologist says about the new ways to influence the unfolding of events;  that effective approaches are  soft rather than hard and correspond to an extended understanding of fundamental processes, and insights into how to derive advantage from them. De Vulpian argues that these solutions tend to be therapeutic, strategic, and catalytic, resembling more closely the work of the doctor or the gardener than the efforts of the engineer or the lawyer. They are characterized by partnership rather than sovereignty. 

Today in the area of criminal law there is more emphasis on reform of the offender, and restorative justice remedies. On the civil side we have to appreciate that the creators of the rules had much more in mind than simple renewal of the High Court Rules. That renewal had to be in keeping with the growing cultural values in the society. While there is a need for efficiency and accuracy, there is an appreciation that such attributes can only be fully achieved with openness and dialogue. An understanding of the meaning of the process as it unfolds is as important as the process itself. I hope that this article has contributed somewhat by explaining the added value in terms of one view of the meaning which can be attributed to the provisions of the CPR 2000.

Justice  Francis H V Belle

                  Judges Will Not Look Kindly On  A Failure To Respond To A proposal For Mediation

Another strong decision has emerged from the Technology and Construction Court as a warning that judges will not look kindly on a failure to respond to a proposal for mediation. In PGF v OMFS [2012] EWHC 83 (TCC), Recorder Stephen Furst QC sat as a Deputy High Court judge to hear a dilapidations claim for just over £1 million brought by PGF in respect of premises in Lombard Street, London. Trial was to start on 11 January 2012, but on the previous day PGF accepted a Part 36 offer of £700,000 made by the defendant OMFS nine months earlier on 11 April 2011. This terminated the substantive claim, and while PGF were entitled to costs up to the date of the Part 36 offer, they sought a court order under CPR 36.10(4)(b) for OMFS to pay their costs from April 2011 until settlement, seeking to challenge their normal liability to pay OMFS’s costs after late acceptance under CPR 36.10(5)(b).

PGF argued that the ordinary expectation that they should be liable for OMFS’s costs following late acceptance should be varied for three reasons: 

1. it was only on 10 January 2012 (the day before trial) that OMFS made it clear that they were going to argue that they were not liable for defects in the ventilation system because that system was actually outside the demised premises (a point that they had not pleaded) and about which OMFS would need to amend at trial;

2. that this was “information” within the meaning of CPR 36.14(4) available (or not) to the parties at the time the Part 36 was made, which if available would have materially affected their decision as to whether to accept it or not;

3. PGF had proposed mediation in a Part 36 offer of their own in April 2011, and again in July 2011, both of which had been ignored by OMFS: these amounted to unreasonable refusals, giving rise to grounds for varying the normal costs order.

The judge broadly found against the claimant PGF on the first two points, which left only the refusal of mediation as a basis for disturbing the ordinary costs pattern. The judge applied the tests and burden of proof established by Halsey v Milton Keynes NHST carefully.

 

Read Article— at http://www.adrtimes.com/articles/2012/3/28/dont-ignore-a-request-to-mediate.html

 

 

                    Myrie seeks 'significant' damages from Barbados

2012-06-05

 


 

CMC - Jamaican Shanique Myrie who has taken legal action against the Barbados government, after she alleged she was sexually assaulted by a female Immigration officer, and then denied entry into the country last year, is seeking significant damages including an apology.

In documents filed with the Trinidad-based Caribbean Court of Justice (CCJ), which in April granted her special leave to commence proceedings against the Barbados government, Myrie is also claiming J$118,000 or US$1,340 in special damages to cover the cost of airline ticket, medical expenses and a slipper.

In addition, she is also seeking unspecified amounts for exemplary damages, aggravated damages and interest.

Her lawyer, Michelle Brown argued before the CCJ in April that Myrie was subjected to “forceful brutish language” by immigration officials at the Sir Grantley Adams International Airport on her arrival into the country on March 14 last year.

The Jamaican-born attorney said that her client is “still not certain what laws of Barbados she broke” resulting in her being refused entry into a CARICOM country that had signed on to the 2007 declaration allowing for the free movement of people within the region.

In the documents filed with the CCJ last month, Myrie wants a declaration that the Barbados government breached her right to enter the country pursuant to Article 45 of the Revised Treaty of Chaguaramas that governs the regional integration movement, CARICOM.

Myrie also wants a declaration that Barbados discriminated against her “on the ground of nationality only in denying her entry and subjecting her to inhumane treatment” as well as that the action by Barbadian border officials and agents of the government were “null and void”.

Myrie is also seeking an order that the Barbados government issue her with an official document “stating that the denial of entry on March 14, 2011 was unlawful and that the “Cancelled” entry stamp in her passport is null and void.

In addition, she wants an order that the Barbados government “issue an apology for violating her fundamental human rights and freedom, in particular, by treating her in a discriminatory manner, conducting an unlawful body search, conducting an unlawful cavity search, arbitrarily and unlawfully detaining and verbally abusing” her.

She also wants the Barbados government to take “reasonable steps to facilitate educational or sensitivity training for all Border Officials on Barbados’ obligations under the Revised Treaty and international human rights law, in keeping with the object and purpose of the Revised Treaty and the goal of free movement”.

In April, the five-member CCJ panel, headed by its President, Sir Dennis Byron, approved Myrie’s application to file the case during a special sitting in Barbados.

 

The ICTR: Has the work of the Prosecution Ensured Reconciliation Amongst the Tutsis and Hutus in Rwanda?

Yesterday I was privileged to listen to a presentation by the ICTR President and Presiding Judge Vagn Joensen of Denmark at the New York Bar Association. I was impressed with his modesty and his wizard legal mind that has contributed to the cutting edge creativity on issues facing our changing world, such as prosecuting rape and sexual violence as crimes against humanity. He has been involved in a number of complicated post-conflict environments in which he was instrumental in shaping new jurisprudence that subsequently has become accepted as international law.

Yet thanks to an educated question by a member of the audience who happened to be a defense attorney for the ICTR, a great weakness was exposed in the work of the ICTR, that has the scope to reverse all the peace, reconciliation and justice work that has been done so far in Rwanda. It concerns the work of the Prosecution office in submitting inducements that have defined the work of the ICTR. The ICTR was charged with investigating and bringing to justice perpetrators of crimes and killings in Rwanda between 1 January 1994 and 31 December 1994. This includes the Genocide and the subsequent events when the RPF liberated Rwanda from the perpetrators of the Genocide, pushing them out and into Eastern DRC. According to human rights reports about the time, After liberating Kigali, the RPF went on the rampage killing many innocent civilians both Hutus and Tutsis they felt were complicit in the broader implementation of the Genocide. even more evidence exists that the RPF committed even more massacres in Eastern Congo when they followed the former genocidaire fighters as they fled the liberating forces. Part of the original brief of the ICTR was for the Prosecution to investigate the post-genocide period as well as, of course, the genocide itself. Since 1994 to date, the Prosecution has not done so, implying that only the Genocide was investigated not the carnage that came after.

Part of me says that the Genocide was so horrific that the liberating force must have been totally traumatized and perhaps that to some extent justifies the retaliatory killings that took place. However, the dimension of the carnage defies this logic. Hundreds of thousands of Rwandans and Congolese were killed in 1994 in the process of RPF purging that region and pursuing the Genocidaires as they escaped. Secondly, Rwanda has made a lot of progress since 1994 yet scratching the surface of present-day Rwanda uncovers an uncomfortable growing trend of human rights violations, suppression of democratic evolution and representation particularly of Rwandan Hutus, and of human rights activists and journalists presenting balanced views and reporting on the current situation within the country, by the Kagame government. There is irrefutable evidence of this that is widely written up on and quoted in Rwandan and international media. Thirdly and perhaps most importantly, reconciliation can never occur on the basis of selective justice. By not addressing the post-genocide RPF killings, the Prosecution of the ICTR might have created the very conditions of inequity and lack of justice that will trigger continued grievances and latent violence amongst present-day Rwandans.

There is already evidence of this in the Rwandan country side where Tutsi and Hutu children rarely go into a classroom together and if they do, the atmosphere is punctuated with tension and a discernible level of mutual abuse. A few years ago I used to visit Kigali every few months. There was no way to ignore the lack of integration between Hutus and Tutsis and actually it was hard to identify any Hutus in public functions or working in shops, restaurants or the new soulless shopping malls coming up in Kigali. Yet in the country side, stopping at a restaurant or market to buy vegetables met that you met mostly or even exclusively Hutu farmers and communities (I was working in Eastern DRC and used to drive to Kigali). They always appeared to be poor, engaged in primary income activities rather than in teaching, provincial government or police. Why the distinctions if the race issue was legislated away by Kagame (Kagame pushed a law to never require anyone to mention their ethnic group on any official document)?

Time will tell as the clock for ethnic tensions and violence in the Great Lakes is ticking away. The 1994 Genocide was preceded in the 1950′s by an earlier Genocide of equal proportions where a diaspora resulted in the movement of Tutsis and Hutus throughout the African continent. Every 40 years or so the Genocide cycle returns. This time, I hope it never does but reconciliation is something one can feel and touch, and I could not really find it over a couple of years of visiting Rwanda. Then yesterday a question asked by those more involved begged me to investigate.

I don’t know the answer but after thinking about it and reviewing the ICTR website and taking into account all that I know after begin in the region for years, I fear for the worst but pray for the best.

Go to the following site to see the mandate and structure as well as the work of the ICTR that is scheduled to close down by end-2014:

http://www.unictr.org