California Bar Journal
OFFICIAL PUBLICATION OF THE STATE BAR OF CALIFORNIA - MAY 1999
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California Bar Journal

The State Bar of California


REGULARS

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Front Page - May 1999
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News
Lending compassion to a difficult situation
Legal specialist exam set Aug. 29
Board to meet June 25-26
Domestic violence group seeking volunteers
Northern California legal services board to fill five vacancies
Court statistics report now available on CD
For Y2K advice, link through bar's web site
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Trials Digest
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Opinion
Hear the cries this time
A single letter, a big increase
Train time at the ABA
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From the President - Door to justice must be open
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Letters to the Editor
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Legal Tech - Litigation library great for attorneys out of office
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New Products & Services
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MCLE Self-Study
The Disabled Practitioner
Self-Assessment Test
MCLE Calendar of Events
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Discipline
Ethics Byte - What to do when a client goes missing
Attorney charged with exposing clients to deportation
Attorney Discipline
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Public Comment

LETTERS

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Non-lawyer writers should stick to non-lawyer issues

"Losing their grip on state capitols" (April 1999 California Bar Journal) demonstrates the problems inherent in non-lawyers writing about legal matters. Nothing in the article proves or even suggests the conclusion.

Perhaps other business and professional men and women, and even soccer moms, are getting more interested in politics - a good thing. Perhaps, as in California, long-term office holders, often lawyers, are being retired due to term limits. I know as a percipient witness that making money as a lawyer, the profession others love to hate, is harder, not easier, than before.

Allow me to correct the record. The phrase is Res Ipsa Loquitur, or res ipsa in the vernacular. This is not a legislative concept, but a rule developed by judges and lawyers to protect the injured, innocent victims of the civil wrongdoing of others. In general, res ipse when applicable provides proof of negligence where the accident could not generally have happened with the fault of another. In the leading case, a passerby was injured by a barrel falling from the window of a barn.

Richard J. Stall
Los Angeles

A seductive call to validate jury nullification

The Point/Counterpoint discussions on the issue of jury nullification in the March Bar Journal sadly reflect how the seductive call to validate this dangerous practice in the name of personal conscience - notwithstanding the facts and law of a case - will deal the final coup de grace to the already battered and bloodied body of truth lying in anguish as a result of the games we lawyers are allowed to play in court, and will completely destroy the employment of trials as truth-seeking devices.

One point - among others weakly predicated - raised in law professor Alan W. Scheflin's argument serves as ludicrous support for his position sanctifying the doctrine of jury nullification as acceptable in American jurisprudence. This is the suggestion that the destructive nullification practice will not be used in cases of "murderers, rapists, thieves and scoundrels" since these loathesome creatures "are not likely to be freed by big-hearted juries."

It's as simple as this: jury nullification in; truth and justice out. What we used to facetiously suggest, "don't bother me with the facts, my mind is made up," has now become a terrifying truism.

Michael Patrick Murray
Fairfax, Va.

. . . and an early precedent

The debate overlooks some of the teachings by a leading jurist (Lord Mansfield) who established a very early precedent on jury nullification.

In England, a criminal sedition proceeding was brought against a publisher named Linus. The crime charged was printing and publishing seditious literature about the king. The issue was highly politically charged.

In the jury instructions, Lord Mansfield instructed the jury that he, as a matter of law, found the publication to be seditious.

Therefore, he instructed, the jury must convict that it found the defendant had printed and published the same. The verdict was "guilty of printing and publishing only."

Lord Mansfield then wrote an opinion that concluded that the word "only" meant to acquit the defendant of sedition. He found Linus to be not guilty, notwithstanding that if his instructions were to be followed, Linus was guilty.

It is very difficult and perhaps impossible to imagine a current jury doing the same thing today. The jury system is one in which jurors are supposed to be the final bulwark against unfair and oppressive laws, whether they are enacted by the legislature, the police or others.

Those who argue against jury nullification ought to seriously consider the decision of Lord Mansfield in the Linus case.

James R. Christiansen
Santa Barbara

Dismayed by trivial view

I read with great dismay the essay by Robert Trieman in April in which he trivializes jury service. Is he not aware that the right of trial by jury is guaranteed under the United States Constitution? Doesn't he realize that the jury trial is the last and only significant way that citizens can participate in self-governance? Mr. Trieman implies that somehow plaintiffs' law-yers are the only persons who benefit from a citizens' guaranteed right to a trial by a jury of their peers.

Mr. Trieman's elitist attitude intimating that ordinary citizens are simply not intelligent enough to discern truth and justice in a courtroom is simply indicative of his own inability or unwillingness to clarify the issues of his so-called "complex" litigation so that persons of ordinary intelligence can understand them.

Deborah A. Wolfe
San Diego

A key foundation of our democratic process

The right to trial by jury is one of the key foundations of our democratic process, and I cringe when I encounter opinions advocating that the right be curtailed in any respect. The solution to juror dissatisfaction is not to do away with the right to jury trial but to address the issues which are causing the grumbling. The solution to obtaining broader representation on juries is for courts to become more stringent in granting relief from jury service, especially to those who profess to have more important duties to which they must attend.

J. Gary Hastings
Court of Appeal, 2nd Appellate District
Los Angeles