Archive | January 2013

The Trial Practice Tips -15 Ways to Ruin a Deposition

In this series of posts, I’ll dig into the archives of The Trial Practice Tips Weblog and highlight some of my prior posts about depositions. Although you can see all of these post in this weblog’s deposition category, I thought I’d try to reorganize some of them in a new way.

I’ll begin with the first five ways a lawyer can ruin a deposition. I’ve been guilty of all of them at one time or another–

1. Deposing someone who doesn’t need to be deposed at all. Unnecessary depositions are a waste of time and money. See this post: “Not Every Witness Need to Be Deposed.”

2. Failing to investigate the witness online. Just a few minutes of Internet research can turn up lots of things about a witness you didn’t know before.  Here’s a post about that: “Deposition Tip: In Preparing for a Witness, Always Check the Web.”

3. Trying to wing it. Maybe you’re so good that your only preparation is getting to the deposition on time. Sound foolish? It is. See this post: “The Dangers of Winging It in Depositions.”

4. Neglecting the preliminary questions. Those cookie-cutter questions lawyers ask at the beginning of a deposition have a purpose. Don’t skip the “you know you’re under oath”-type questions, but don’t turn them into a speech either. Here are two posts that make these points: “Those Preliminary Deposition Questions: What’s Their Purpose?” and “Those Preliminary Deposition Questions: Don’t Make a Speech.”

5. Assuming the witness is telling you the truth. As human beings, we’re conditioned to believe what people say. I feel like I am, at least. That’s why I’m constantly making this mistake, even though I wrote this post: “Practice Tip: “Assume Your Deposition Witness Is Lying.”

6. Failing to ask the questions you should ask in every deposition. There are certain questions you should ask in almost every deposition. Here’s a helpful list: “What To Ask in Every Deposition.”

7. Asking the right questions, but in the wrong way. There are many ways to word a deposition question. Few of them are right. For a few explanation, see “The Anatomy of the Perfect Deposition Question.

8. Failing to listen to the witness’s answers. Sometimes a witness answers a question other than the one you asked. Unless you’re really listening to the witness, you might not even notice. See this post: “When the Witness Answers a Question You Didn’t Ask.”

9. Stopping after the witness answers “I don’t know.”Sometimes when a witness claims not to know an answer to your question, it excludes him as a witness on that point later in the case. Or does it? Not unless you know how to follow up appropriately. Here’s a post on that topic: “When a Witness Answers ‘I Don’t Know.’

10. Paying too much attention to your opponent. Opposing lawyers: who needs them? Sometimes it’s best just to pretend they’re not there. See this post: “Ignore your opponent in a deposition.” (But also see “Depositions: Don’t Ignore Form Objections.”)

11. Failing to assert control over the witness and the opposing counsel. Since controlling the witness and opposing counsel are such key parts of a successful deposition, I’ve done a number of posts over the years on these topics. See these, for example:

12. Neglecting the documents. Some lawyers bring documents to a deposition, intending to ask the witness about them, but do it only halfway. Instead, try digging in. Try this list of questions: “Depositions: Questions to Ask About Documents.”

13. Taking too long. Most depositions go on much longer than is necessary. Learn how to shorten them with the tips described in this post: “Can You Make Your Depositions Shorter?

14. Failing to learn from your mistakes. If you keep a running journal of your mistakes, it’s less likely you’ll make the same one twice. See this post: “A Deposition Tip for Young Lawyers: Learn from Your Mistakes.

15. Failing to incorporate your completed deposition into your overall trial plan. After a deposition has ended, do you add the transcript to a giant stack of depositions sitting on your floor? There are a number of other more sensible post-deposition steps you can take. You’ll find seven of them here: “Trial-Planning Steps to Take After a Deposition Has Ended.

Former Gov. Ryan returns home to finish sentence under house arrest

By Jason Meisner , Annie Sweeney and Angie Leventis Lourgos, Chicago Tribune reporters10:32 p.m. CST, January 30, 2013

Former Illinois Gov. George Ryan was let out of a federal prison in Indiana in the dead of night early Wednesday and checked briefly into a Chicago halfway house before he was released — in a surprise decision — to his home to finish out his 61/2-year sentence on home confinement.

The quick turn of events allowed Ryan, who turns 79 next month, to elude a horde of media gathered at the prison in Terre Haute, Ind., and then slip from the halfway house on the Near West Side undetected several hours later.

By 10:30 a.m., Ryan had an emotional reunion with 17 of his children and grandchildren at his longtime Kankakee home, according to his attorney, former Gov. Jim Thompson. Later in the day, Ryan’s daughter, Jeanette, smiled as she left through a rear entrance. “We are very happy he’s home,” she said.

Home confinement for Ryan means he won’t have to face weeks or months at the Salvation Army halfway house where many of the state’s other disgraced politicians have had to take up residence.

The move struck some as one more backroom deal cut by a longtime political insider, but Thompson and U.S. Bureau of Prisons officials denied that Ryan received special treatment.

Thompson said he was surprised by the accommodation and that he didn’t know it was being planned for Ryan until Wednesday morning.

“It’s not something I asked for, it’s not something he (Ryan) asked for, so it is in no way preferential treatment,” Thompson said.

A Bureau of Prisons spokesman in Washington declined to say how many inmates like Ryan go directly to home confinement in the final months of their sentences, but the agency’s website made it clear that the ordinary route would be to go first to a halfway house.

The Bureau of Prisons won’t discuss specific inmates, but spokesman Chris Burke said officials decide each inmate’s placement on an individual basis after assessing everything from financial stability and family ties to any emotional or medical issues such as drug or alcohol addiction.

As for the overnight departure, Burke said prisons officials consider the disruption to the prison as well as inmate safety.

“These issues are considered with any inmate — that he get safely from point A to point B,” Burke said.

At least one other well-known defendant, convicted insurance broker Michael Segal, 69, was allowed last year to skip the halfway house.

Court records in Segal’s case revealed that officials at the prison in Oxford, Wis., where he was held, recommended he be released directly to home confinement because he “has few re-entry needs.”

Several veteran attorneys who spoke to the Tribune on Wednesday said that at his age, Ryan doesn’t need help transitioning back to life on the outside either. Among the classes offered at the halfway house are how to write a check and what to wear on a job interview.

“For someone like George Ryan, who’s (almost) 79 years old, he’s not a person who needs to find a job or needs help transitioning,” attorney Marc Martin said. “He’s essentially retired.”

The attorneys also said the Salvation Army’s halfway house has limited resources and that inmates of Ryan’s age and stable background make good candidates for home release to alleviate crowding there.

“I do not know the Bureau of Prisons to ever make deals with anyone, I don’t care who they are or who their lawyer is,” said attorney Jeffrey Steinback.

Yet that doesn’t always explain why other older high-profile inmates — including William Hanhardt, a former Chicago police chief of detectives in his 80s — recently had to serve time at the halfway house. However, former Chicago Ald. Edward Vrdolyak, 75, who also spent time in the halfway house, was mandated to serve time there in a judge’s sentencing order.

While Ryan will awaken Thursday at his Kankakee home, he clearly will be under more restrictions than when he left for prison more than five years ago.

He can’t leave without permission. He can’t enjoy a drink. He will be subject to overnight calls from prison officials. He will have to submit to random tests for drugs and alcohol. Though he is out of prison, Ryan is still a federal inmate.

“They will call him up at 2 a.m. and say, ‘What’s your U.S. Marshal number?'” said Patrick Boyce, who spent time in federal prison for securities fraud and now runs a consulting business that teaches prisoners about the penitentiary system. “Ryan will repeat it, they will say thank you, and hang up.”

He is confined to his home except for work — if he decides to get a job — or other approved movements, including going to church and medical visits. Burke said “certain social functions” can be approved.

Between now and the end of his sentence in early July, Ryan cannot visit others in their homes, and if he goes to a public place, he has to bring a receipt or other written proof of where he was, Thompson said.

“It’s like being in the halfway house,” Thompson said.

Ryan is home for the first time since wife Lura Lynn died, and his oldest grandson will be staying with him, Thompson said.

“I imagine it’s very hard,” Thompson said. “Just as I imagine it’s been very hard ever since she died and it’s been very hard ever since he left her (for prison). At least he’s got closure now with his family.”

Ryan’s long career in public life came to a stunning crash with his 2006 conviction for fraud, racketeering and other charges for steering millions of dollars in state business to lobbyists and friends in return for vacations, gifts and other benefits to him and his family. He is one of four former Illinois governors convicted of federal crimes over the past four decades.

Once a small-town pharmacist, Ryan played politics as a consummate insider, a proponent of backroom deal-making and influence peddling as an accepted part of the political culture. The Kankakee native rose from speaker of the Illinois House to win statewide election as lieutenant governor, secretary of state and one term as governor.

As governor, he wanted to be known as a deal-maker and builder, the father of a multibillion-dollar public works program known as Illinois First. Instead he spent the entirety of his single term on the defensive, fending off a spreading federal probe known as Operation Safe Road.

Despite his legal problems, Ryan became a hero to some for abandoning Republican orthodoxy and taking a stand as governor against Illinois’ death penalty, ultimately declaring a moratorium on executions and commuting the sentences of all death row inmates in the final days of his term. Death penalty advocates still trumpet him for the Nobel Peace Prize.

The long day Wednesday started in a rainstorm in Terre Haute when Ryan left prison at about 1 a.m. and was driven to Thompson’s Chicago home, where he arrived around 4:30 a.m. in sweats and changed into a gray sports coat, white shirt and maroon tie.

A little over two hours later, Ryan, looking thinner but healthy, arrived at the halfway house at Ashland Avenue and Monroe Street. He was surrounded by TV cameras — and reporters firing questions — as he walked toward the four-story red brick building in the pre-dawn darkness.

Accompanied by his son, George Ryan Jr., and Thompson, Ryan smiled tightly but refused to answer questions from reporters.

“Guys, he can’t talk,” Thompson barked. “Bureau of Prisons policy. Come on, give him a break!”

Tribune reporters Bob Secter and Peter Nickeas contributed.


Copyright © 2013 Chicago Tribune Company, LLC

No change this morning as the Midland City hostage situation enters its 40th hour

MIDLAND CITY, Alabama –Dale County Sheriff Wally Olson said Thursday morning there is no change in Midland City, where a man remains holed up in an underground bunker with a young child he snatched from a school bus Tuesday.

The child is believed unharmed and inside the bunker with Jimmy Lee Dykes, 65, Olson said. Dykes is accused of shooting and killing a school bus driver, who thwarted an attempt to take two children from the bus, and snatching the boy.

An army of officers from local, state, and federal agencies is on the scene, where negotiations have entered their 40th hour.

Midland City community members gathered for two vigils on Wednesday evening to remember the school bus driver, Charles Albert Poland Jr., who was 66 when Dykes allegedly shot him. Poland is said to have refused Dykes’ request for two children before Dykes shot him up to four times.

He was remembered as a Godly man and a hero by his community.

The child, whose name is not being released, is autistic, according to law enforcement sources. He requires medication, which Dykes has allowed to be delivered through a PVC pipe. Officials are also using the pipe to communicate with Dykes.

According to an Alabama state representative who has spoken to authorities and the family, the underground bunker has electricity and the child is watching TV, AP reports. The child also asked for, and received, crayons and a coloring book, according to WSFA.

Negotiations with the hostage-taker continue Thursday morning.

For the latest on the situation in Midland City, check this page.

White Collar Professor – Kevin Ring’s case ruling cause consern

Ring Case – Commentary

The D.C. Court of Appeals rejected all of Kevin Ring’s appellate arguments, from his claims of an impropriety premised on the district court’s definition of what constitutes an “official act” to a claim of a  Federal Rule of Evidence 403 violation. The court’s findings include that “campaign contributions can be distinguished from other things of value.” (see here).

The court states “[t]he distinction between legal lobbying and criminal conduct may be subtle, but, as this case demonstrates, it spells the difference between honest politics and criminal corruption.”  This sentence in the opinion concerns me.  Should a distinction that results in imprisonment be “subtle”?  “Googling” the word “subtle” a definition provided is “[s]o delicate or precise as to be difficult to analyze or describe.”  And if this distinction is “subtle,” should the rule of lenity be considered?  And should a “subtle” difference be considered to “spell[ ] the difference between honest politics and criminal corruption” or as this case finds – spell the difference between freedom and prison.

Irrespective of whether the movie Lincoln wins best picture, unlike Argo, Zero Dark Thirty, Silver Lining Playbook, and the other nominees, Steven Spielberg will be able to say that a federal appellate court has quoted the movie in its decision.  Yes, Hon.Tatel held that “[t]he ubiquity of these practices perhaps explains why in Steven Spielberg’s film Lincoln a lobbyist declared, “It is not illegal to bribe congressmen—they’d starve otherwise.”


Scathing report on treatment of inmates: Legislator says feds could take over Tutwiler: Cam Ward says ‘abuses are well documented’

Cam Ward says ‘abuses are well documented’

Written by
Kala Kachmar

A state legislator openly expressed concern that there could be a federal takeover of Alabama’s prison system if corrections are not made at Julia Tutwiler Prison for Women.

The concern was expressed at a meeting of the Joint Legislative Prison Committee held to discuss a U.S. Department of Justice’s National Institute of Corrections (NIC) report that found a multitude of problems at the prison, including a failure to report sexual abuse of inmates. The report was based on a three-day on-site assessment of cross-gender supervision at Tutwiler.

Alabama Prison Commissioner Kim Thomas requested the assessment months after the Montgomery-based nonprofit Equal Justice Initiative released a report that found Alabama Department of Corrections employees had illegal sexual contact with dozens of women at the Wetumpka facility. The group also said official responses to reports of abuse created an atmosphere of intimidation that discouraged future complaints.

Thomas began implementing new policies to take corrective action in December, about a month after the report, which found a culture of “intimidation and undue harshness” at the prison, was released. Since then, Thomas and his staff have developed an official action plan that directly addresses some of the issues in both reports.

State Sen. Cam Ward, R-Alabaster, said it’s important legislators show “political will” to start fixing some of the problems at Tutwiler and in other prisons in the state. He said the prison system is the most underfunded, overcrowded in the country.

Ward said the system is in jeopardy of being taken over by the federal government, and taking steps to make changes will help “fend off” future litigation.

“I think we’re going to make sure we hold the officials in the Department of Corrections accountable,” Ward said. “We have a definite issue at Tutwiler. The abuses are well documented.”

He said although there is an action plan, the Legislature has to provide oversight to make sure it’s carried out.

Rep. Allen Farley, R-McCalla, said after reviewing the 30 issues summarized at the end of the NIC report, only seven had to do with budget constraints. He said the rest “dealt with management, people and responsibility,” and that staff should have been responsible for things such as making sure the hotlines used to report staff misconduct or sexual assault were working.

Farley asked Thomas to consider reopening investigations of staff members at the facility that were “swept under the rug.”

Thomas said he wasn’t opposed to the idea.

State Sen. Vivian Davis Figures, D-Mobile, said part of the problem is that for decades in Alabama, political leaders have used calls for stricter punishment of criminals to get elected.

“Until we as a legislature deal with the reality of what’s happening, nothing is going to change,” she said.

Figures also said an NIC report should be done on all 28 of the state’s prison facilities, and that there are sexual assaults and inmate mistreatment in male prisons too. The reports can help political leaders and corrections staff decide the best way to make changes.

“We want to be proactive instead of reactive,” Ward said. “We don’t want to get into another situation like Tutwiler that bubbles over.”

Scathing report on treatment of inmates: Legislator says feds could take over Tutwiler: Cam Ward says ‘abuses are well documented’

Fourth Amendment Blog – W.D.Tenn.: Use of alias to mail package is not a waiver of privacy in the package

Citing United States v. Skinner, 690 F.3d 772, 785 (6th Cir. 2012) (Donald, J., concurring) (“While this circuit’s law is not well developed on this point, numerous courts have held that privacy expectations are not diminished by the criminality of a defendant’s activities.”), the Western District of Tennessee concludes that, at least in the Sixth Circuit, use of an alias on a shipped package containing drugs is not an abandonment or a waiver of an expectation of privacy. United States v. Williams, 2012 U.S. Dist. LEXIS 185177 (W.D. Tenn. December 3, 2012):

There are two possible ways to interpret the concurrence. First, because some people employ an alias and use the mail illegally, everyone with a legitimate reason to remain anonymous should lose their expectation of privacy in the post. Alternatively, only people using an alias for legitimate reasons may retain an expectation of privacy in their mailings while those who employ an alias for illicit purposes may not. Both constructions turn the Fourth Amendment on its head.

The first approach assumes that criminals can forfeit the privacy interests of all persons by using a confidential domain for nefarious ends. Any creative means that a person engaging in illegal activity devises to conceal that fact will lead to the end of privacy for persons engaged in wholly legitimate confidential activities. For example, if persons engaged in illegal drug sales often use hotel rooms for their transactions, or commonly employ cellular telephones to communicate the terms of their deals, then under the concurrence’s analysis no one would retain a legitimate expectation of privacy in the use of hotel rooms or cellular telephones.

Under the second approach, only criminals forfeit their Fourth Amendment rights. The illegal contents of the package serve as an after-the-fact justification for a search. .

W.D.Tenn.: Use of alias to mail package is not a waiver of privacy in the package

US Attorney bullying? This time charge is lobbed by budget motel owner who fought to keep property

Had similar claims in cases a few years back here in Alabama.

A U.S. Attorney under fire for her prosecution of an Internet activist is back in the news after a judge refused prosecutors’ bid to seize a family-owned budget motel.

On Jan. 17, U.S. Attorney Carmen Ortiz defended her office’s prosecution of 26-year-old “hactivist” Aaron Swartz, who committed suicide as he awaited a felony trial over accusations he downloaded scholarly papers to make them accessible for free. Critics accused Ortiz of prosecutorial overreach; Ortiz told of a six-month plea offer and said her office was enforcing the law responsibly.

A week later, U.S. Magistrate Judge Judith Dein of Massachusetts issued a “sometimes scathing ruling” rejecting the motel forfeiture request by Ortiz’s office, the Wall Street Journal (sub. req.) reports. According to the Christian Science Monitor, “The two cases are feeding a simmering groundswell among constitutional law professors and others about the inherent discretionary powers of federal prosecutors.”

The government had argued that the Motel Caswell in Tewksbury, Mass., was subject to forfeiture because of 15 drug-related incidents that took place there over a 14-year period. Russell Caswell, who ran and partly owned the $57-a-night motel, said he had no part in the drug crimes, and didn’t know of them until after they occurred, according to the Wall Street Journal, the Lowell Sun and the Boston Herald.

In the ruling (PDF), Dein said it was “rather remarkable” for the government to contend that owner Russell Caswell should lose his property “for failure to undertake some undefined steps in an effort to prevent crime.” Dein said Caswell “was trying to eke out an income from a business located in a drug-infested area that posed great risks to the safety of him and his family” and he took reasonable steps to prevent crime.

After the ruling, Caswell criticized the U.S. Attorney’s office for bringing the case. “It’s bullying by the government,” he told the Boston Herald.

The Institute for Justice helped represent Caswell. The ruling is “a major triumph for property rights,” according to a press release.

US Attorney bullying? This time charge is lobbed by budget motel owner who fought to keep property