You can go through a pretty long judicial career and never face litigation regarding protestors’ rights and police conduct.  But, if confronted with this type of litigation, good judges scramble to find the best authorities.

It is in that spirit that you might want to read this piece:

Fair Warning

Caleb M. Hayes-Deats

 United States Department of Justice – Southern District of New York

November 3, 2013

Abstract: 

Protesting has become an integral part of American politics, so much so that federal Courts of Appeals have recently restricted police officers’ power to arrest demonstrators who have concededly violated otherwise valid statutes and regulations. Specifically, courts have found that, where demonstrators may reasonably, yet mistakenly believe that police officers have permitted their conduct, officers must give “fair warning” before arresting or dispersing those demonstrators. In § 1983 suits, courts have even found that demonstrators’ right to fair warning is “clearly established.” While the right to fair warning may be clearly established, its doctrinal roots are not. Ordinarily, the requirement of fair warning, grounded in the Due Process Clause, guides courts in their application of statutes. The cases mentioned above, however, consider not the content of statutes — indeed, the statutes’ applicability is frequently conceded — but instead the conduct of police officers and demonstrators. As a result, the courts that have recognized demonstrators’ rights to fair warning have not clearly specified whether the First Amendment, the Fourth Amendment, or the Due Process Clause creates that right. Identifying the source of this right is more than an academic exercise. Such identification will help courts expound the right’s contours and determine its future application. Ultimately, this Article argues that courts have unconsciously employed the right to fair warning as a less sweeping form of First Amendment review, one that applies First Amendment principles to officers’ enforcement of a statute, rather than to the statute itself. Only by attributing the right to fair warning to the First Amendment can courts both explain existing doctrine and vindicate the principles that earlier decisions have recognized when invoking that right.

Richard Daniel Klein (Touro College – Jacob D. Fuchsberg Law Center) has posted A Criminal Quartet: The Supreme Court’s Resolution of Four Critical Issues in the Criminal Justice System (29 Touro L. Rev. 603 (2013)) on SSRN.

Here is the abstract:

The Supreme Court 2012 Term was one in which the Court tackled several of the most critical issues that arise in our criminal justice system. Perhaps most importantly, as the 50th Anniversary of the Court’s decision in Gideon v. Wainwright approached, Court addressed the problems presented by counsel who had not provided the effective assistance of counsel during the plea bargaining process. Whereas it was common knowledge that the vast majority of cases in the criminal courts of this country are resolved by plea bargaining, the Court had never required that court-appointed counsel provide competent advice when recommending rejection of a plea offer by the prosecution. It had not even been constitutionally required that counsel communicate to his client the existence of an offer that entailed a reduced sentence were the defendant to plead guilty. The Court also addressed the matter of what action by counsel would constitute abandonment of the client in the post-conviction phase of a case where the client had received the death penalty. And, finally, the Court considered what had remained an unresolved issue: was it constitutional to impose a sentence of life without parole for a juvenile who had been convicted of murder. This article provides analysis of the Court’s handling of these four critical issues.

Cofounders and authors of the bestseller Crucial Conversations, Joseph Grenny, Kerry Patterson, David Maxfield, Ron McMillan, and Al Switzler teamed up to create the New York Times Bestseller second-edition of Influencer: The New Science of Leading Change.

In this book, these five highly-renown and awarded authors present case studies, applications and research into one easy-to-read book, addressing two major ideals.

In the first part, readers will come away with an understanding of the new science of leading change, relating leadership to influence, highlighting the three keys to influencing, and finding vital behaviors as a leader, those that impact the most crucial moments.

In the second part of the two-part bestseller, leaders and influencers will learn to engage the six sources of those around them: Personal Motivation and Ability, Social Motivation and ability, and lastly, Structural Motivation and Ability. Lastly, readers will learn how to become an influencer through “careful diagnosis, patient testing and eventual success with all three keys to influence.”

The SRLN/NCSC Triage Protocols Report is now available.

It was co-authored by Tom Clarke (NCSC) and Katherine Alteneder and Richard Zorza (SRLN).

The proposition in this paper is that it is possible to collect information in a way to establish generally standardized and coordinated triage protocols that link litigant services, courts and legal services. From this process each stakeholder will realize significant gains in efficiency, cost savings and user satisfaction. This paper proposes protocols for evictions, divorces, foreclosures, and credit card debt.

The protocol design involved a broad group of stakeholders from courts to legal aid.  The Report outlines three different sets of protocols, for litigants, for courts, and for non-profit legal aid programs.

The Report can be downloaded directly from here.

Anyone who spends even a short time in family court will hear motions for conduct-based attorney fees. But what about the self-represented litigant who spends a lot of their time defending (or pursuing) relief from an obstreperous litigant in family court?

I came across a blog posting that begins:

The furor on Twitter which has accompanied the publication of Justice Price’s decision this week in Bergen v Sharpe reflects the deep anxiety among some members of the Bar about the spectre of SRLs who are compensated for representing themselves.

For these lawyers, Bergen is their worst nightmare come true. Is it possible to imagine any fate worse than facing a self-represented litigant in a family case?

The link to the blog is here.

You can find the actual case here (Bergen v. Sharpe, decision date:  2013-11-21).

As readers of the blog know I am a big fan of Richard Zorza.  So if he says nice things….maybe….maybe….they are worth reposting:

Judge Kevin Burke to Present Important Webinar on Procedural Fairness

by richardzorza

 

As you know, much of our work on access, including particularly our judicial ethics work, is predicated on the research into public perceptions of procedural fairness.  Judge Burke has long been a leader in analyzing and presenting the implications of this work.

The upcoming webinar, featuring Judge Burke and hosted by the NCSC Center on Court Access to Justice for All (with which I am associated) will be a treat.  It is described as follows:

Judge Kevin Burke, a Minneapolis trial judge since 1984 and a national leader in court reform will be presenting. He coauthored the American Judges Association’s white paper on procedural fairness in 2007 and has been a regular speaker on the topic.  Studies on procedural fairness point to the fact that litigant satisfaction is more closely correlated to the perception of being treated fairly and understanding the process than the actual outcome of the case. This is a particularly important concept for the self-represented litigant.  Similarly, compliance with court orders is dependant in large part upon the litigant actually understanding the order.  Judge Burke will describe the basic components of procedural fairness and the importance of using these techniques when handling cases with self-represented litigants.

The webinar is TODAY, December 11, 2013 at 2 PM Eastern.  Registration info is here.

As Mayor Michael Bloomberg prepares to leave office, and the fate of the litigation on the stop and frisk program lies with the full Second Circuit, there are new developments.

Seeking to ameliorate some of the friction between the police and the community caused by stop and frisk program, the NYPD has piloted a stop and kiss program. Many of the same lawyers who challenged the stop and frisk program are now preparing for litigation to challenge this new practice.

For more details see:  The Onion.

Each year the Massachusetts Judges Conference gives judicial excellence awards to judges in the different court departments.  One of this year’s recipients was the Honorable Judith Fabricant.  Judge Fabricant sits on the Superior Court bench in Boston.  Her remarks, although brief, are worth sharing:

On Judicial Excellence

Remarks by Hon. Judith Fabricant at the Massachusetts Judges Conference Judicial Excellence Awards Dinner, Thursday November 14, 2013

Thank you so much, Kim, for those very kind remarks, and thank you all very much for this award.   I can’t think of a group of people in my professional life whose esteem I value more highly than the people in this room.

I would like to comment very briefly on the concept of judicial excellence.  We tend to think of excellence as the quality of a single judge – something each of us tries to achieve as we sit alone in our courtrooms, or writing in our lobbies.  All of that is true.

But I think judicial excellence is also a communal endeavor – something we strive for together, and something we achieve, if we do, together.   I would suggest that judicial excellence depends on our joint efforts – we cannot achieve it individually.  If our court system as a whole provides quality justice to the public, then we all succeed in serving our mission, and we all can be justifiably proud.  If not, if we have pockets of excellence but a pattern of inconsistency, then the public does not receive what it expects and is due, and that reflects on all of us.

We achieve excellence together, I suggest, by sharing with each other: by sharing whatever expertise we have developed; by giving our time to offer educational programs; by mentoring new colleagues; by consulting with each other on difficult problems; by offering support when any of us is under attack, and by working together to improve the administration of our court system.

I have benefited enormously from the mentoring and support of a long list of judges, many of whom are here tonight.  I have tried to pass that on to others, and I will continue to try to do that.  If I have any success in that effort, the best I could hope for in return would be that those I have shared with will in turn share with others, to the end that the Massachusetts judiciary may achieve excellence together.

Thank you again for this great honor.

As readers of the blog know I am a big fan of Richard Zorza.  So if he says nice things….maybe….maybe….they are worth reposting:

Judge Kevin Burke to Present Important Webinar on Procedural Fairness

by richardzorza

 

As you know, much of our work on access, including particularly our judicial ethics work, is predicated on the research into public perceptions of procedural fairness.  Judge Burke has long been a leader in analyzing and presenting the implications of this work.

The upcoming webinar, featuring Judge Burke and hosted by the NCSC Center on Court Access to Justice for All (with which I am associated) will be a treat.  It is described as follows:

Judge Kevin Burke, a Minneapolis trial judge since 1984 and a national leader in court reform will be presenting. He coauthored the American Judges Association’s white paper on procedural fairness in 2007 and has been a regular speaker on the topic.  Studies on procedural fairness point to the fact that litigant satisfaction is more closely correlated to the perception of being treated fairly and understanding the process than the actual outcome of the case. This is a particularly important concept for the self-represented litigant.  Similarly, compliance with court orders is dependant in large part upon the litigant actually understanding the order.  Judge Burke will describe the basic components of procedural fairness and the importance of using these techniques when handling cases with self-represented litigants.

The webinar will be on Wednesday, December 11, 2013 at 2 PM Eastern.  Registration info is here.

Can the Self-Represented Collect For Time When Required by Opposing Attorney — Canada Moves

by richardzorza

Julie McFarlane has a fascinating blog on the emerging jurisprudence in Canada dealing with the award of costs when time is required by an opposing attorney’s wrongful activities.  As I understand it, this is analogous to the US Rule 11 sanctions.  As described in the blog, the steps to the most recent decision, Bergen v. Sharpe, which ended up with a $200 an hour charge against the wrongful side, were as follows:

1. In family proceedings in Ontario, costs generally follow the award (Rule 24 Family Law Rules). Ergo, successful SRLs may receive costs. In addition, the courts increasingly use costs to penalize parties who delay, prolong proceedings, make unreasonable claims and refuse to consider settlement (more below).

2. Bad behaviour that would lead to an award of costs in favour of a represented party will similarly lead to an award of costs to a SRL (among others, Fong v. Chan). To do otherwise would undermine an increasingly important aspect of the costs regime – to encourage settlement – and would allow a represented party facing a SRL to prolong the matter with impunity.

3. The determination of who bears legal costs should not deter anyone from access to the courts (1465778 Ontario Inc. v. 1122077 Ontario Ltd, awarded costs to pro bono counsel to facilitate access to justice). A presumption against ever awarding costs to SRLs would amount to a bar on access to the justice system.

4. The assessment of the value of the time that SRLs put into their case should reflect an assessment of how much time it is reasonable for them to have spent working on their case – the same standard that is applied to lawyers – and an appropriate hourly rate.

We are not there in the States, I suspect, but it is something to think about as a tool for judges to wield as a disincentive to attorney obstruction in SRL cases.