Courts


Elizabeth F. Loftus

Elizabeth F. Loftus

This Wednesday, October 22, the University of Arizona law school co-hosts an event with cognitive psychologist Elizabeth Loftus. Speaking on her topic “The Memory Factory,” Loftus explores “how the mind is a ‘memory factory,’ one that can construct a richly detailed and emotionally vivid story, believed sincerely by the speaker although it is entirely false.”

Often described as a memory expert, Loftus’s own university page describes her own work this way: “Her experiments reveal how memories can be changed by things that we are told. Facts, ideas, suggestions and other post-event information can modify our memories. The legal field, so reliant on memories, has been a significant application of the memory research.”

You are likely familiar with her work via the pitched “memory wars” that waged in legal circles. Through her research on “the malleability of human memory,” Loftus examined eyewitness memory and what was called “the misinformation effect.” Numerous cases and headlines over the years have centered on how false and recovered memories may be created, even inadvertently; those dialogues played out most notoriously in childhood sexual abuse cases.

University of Arizona Law School logoThe free event is open to the public and does not require registration (though seating may be limited).

When: Wednesday, October 22, 7:00 pm (doors at 6:00)

Where: Ares Auditorium (room 164), James E. Rogers College of Law, 1201 E. Speedway, Tucson

As the organizers say, Loftus’s presentation is “part of ‘The Mind & The Law’ Lecture Series sponsored by the UA’s College of Science, the School of Mind, Brain, and Behavior’s Cognitive Science Program and the James E. Rogers College of Law.”

More information on the series is available here.

Former Montana Supreme Court Justice James Nelson will speak in Tempe, Ariz., on Wednesday October 22 on the topic of Citizens United and the influence of money in judicial elections.

Former Montana Supreme Court Justice James Nelson will speak in Tempe, Ariz., on Wednesday October 22, on the topic of Citizens United and the influence of money in judicial elections.

The guest speaker at a Wednesday Tempe event will be a retired jurist who is expected to offer frank commentary about the corrosive role of campaign money in judicial elections.

Former Montana Supreme Court Justice James Nelson will offer remarks about the Citizens United ruling—and especially the impact of money on the election of judges—at a mixer hosted by the Arizona Advocacy Network.

As the AAN says, “Learn how to keep Arizona’s judicial system protected from political attacks. Increasingly special interests groups and big money are targeting the courts for their own gain.”

Former Justice Nelson is just as likely to offer a rousing dialogue on a variety of issues. His judicial contributions have sometimes been controversial, outspoken and noteworthy. (You can read more about Justice Nelson here and here.)

The October 22 event, co-hosted by the ASU Indian Legal Program, takes place at the Old Main on the ASU campus, 400 E. Taylor Mall, Tempe (parking is available in the Fulton Center parking garage across University Ave.).

The event is free, but RSVP is required. Register here.

logo-AJS American Judicature Society 100yearA brief and sad item today: The American Judicature Society is closing its doors.

Kind of inside-baseball-ish, I know. But the AJS had a laser-focus mission to safeguard fair and impartial courts. The decision to dissolve comes at a time when courts are under greater attacks than ever before. Here’s hoping others step into the breach.

Among many other things, the AJS publishes the esteemed Judicature. You can read the current issue here.

Here is part of a news release. You can continue reading it here.

“On September 26, 2014, the Board of Directors of the American Judicature Society (AJS) approved a plan to dissolve the Society and wind up its affairs.”

“AJS was the original ‘fair courts’ citizen organization and, for 101 years, has worked nationally to protect the integrity of the American justice system through research, publications, education and advocacy for judicial selection reform. Among its notable accomplishments are the development of the ‘Missouri Plan’ for judicial selection, the creation of state judicial conduct commissions and judicial nominating committees and publication of its award winning peer-reviewed journal, Judicature.”

“More recently, other entities have joined the American Judicature Society’s mission to ensure that the nation’s justice system is fair, impartial, and effective. In the coming weeks, AJS will reach out to these entities in an effort to ensure the continued operation of its Center for Judicial Ethics and Judicature, which serves as a forum regarding all aspects of the administration of justice and its improvement.”

Hermans House movie poster

Herman’s House film poster

Last week, a remarkable film was awarded an Emmy. Herman’s House is a documentary I’ve mentioned and reviewed before, and it examines the use of solitary confinement and incarceration in a compelling way. The award news—plus a free screening—is reason enough to point you toward it.

My review was way back in 2012; you can read it here.

The Emmy, given to PBS’ POV Documentaries for Herman’s House, is described here. This is an excerpt from the press release:

“The POV (Point of View) film Herman’s House won the 2014 News & Documentary Emmy Award for Outstanding Arts and Culture Programming, it was announced on Sept. 30 by the National Academy of Television Arts & Sciences. Herman’s House aired on PBS in 2013 as part of POV, American television’s longest-running independent documentary series. The 35th Annual News & Documentary Emmy Awards were presented at a ceremony in New York City. PBS won a total of 11 awards, more than any other broadcaster.”

The award is bittersweet, for the film’s namesake, Herman Wallace, passed away a year ago.

You can watch a portion of the Emmy Award ceremony here, as the film’s producers accept (click on “Playlist” and select Outstanding Arts and Culture Programming).

Haven’t yet seen this award-winning film? It is screening—free—through October 15 here.

Arizona Justice Robert Brutinel

Justice Robert Brutinel

A panel discussion on Friday, October 17, will cover recent changes to the Arizona rules controlling use of mobile devices in courtrooms. Sponsored by the First Amendment Coalition of Arizona, it will feature Justice Robert Brutinel, who chaired the 2013 committee whose recommendations led to the changes.

Those changes specifically were made to Supreme Court Rule 122.1 (use of mobile devices in courtrooms) and Rule 122 (video, audio and still photography in courtrooms).

As the Coalition describes the free event, “Learn what is permissible use of smartphones, tablets or laptops in Arizona state courtrooms and what is not, as well as the latest regarding use of cameras and recorders in court.”

The discussion will be held at the ASU Cronkite School of Journalism in downtown Phoenix.

The RSVP page (and more information) can be found here.

The local chapter of the Society of Professional Journalists is a member organization I’m proud to call home. And that chapter is a charter member of the First Amendment Coalition. I hope you come out to join journalists, lawyers, law students and others as we hear about this important and evolving topic.

court stenographer

What follows is a guest blog post on a very timely topic, and one that may affect the practice of many Arizona lawyers. It is written by Stinson Leonard Street attorney Blair Moses (whose bio is at the end). Here’s Blair:

Important Changes to the Arizona Code of Judicial Administration (ACJA) Governing Court Reporting and Their Impact on Arizona Attorneys

In September 2013, the Arizona Supreme Court released proposed amendments to the Arizona Code of Judicial Administration (ACJA) governing court reporting—ACJA § 7-206. Arizona court reporters had immediate concerns that the proposed amendments might affect the integrity and impartiality of court reporters and promote unfair billing, exorbitant costs, and a break in the chain of custody of the confidential record. These concerns were due in part to amendments that 1) allowed national court reporting companies, who are not currently licensed in Arizona and have no accountability to the Arizona judicial system, to take control of the confidential record and all production and billing for that record; 2) limited the court reporter’s duty and accountability to accurately write the testimony; and 3) restricted the court reporter’s ability to inquire about and ensure fair dealing and equitable treatment of all parties.

Moreover, these proposed code changes could have negatively impacted an attorney’s duty to safeguard client information and confidences. The proposed amendments allowed the release of testimony and exhibits to an “authorized agent,” such as a national court reporting company, without requiring permission or notification of the witness or any party to a proceeding. Attorneys, like certified court reporters, have ethical obligations to prevent disclosure of confidential and protected information to nonparties of a proceeding and to prevent confidential information from being archived by a third party. Thus, releasing transcripts and exhibits to, and archiving by, a third party may have violated attorneys’ Ethical Rule 1.6.

Following the expression of these concerns at various public forums and through public comment letters from Arizona court reporters, Arizona attorneys, and out of state court reporters facing similar amendments, Arizona Supreme Court Chief Justice Berch appointed a Task Force to evaluate the proposed amendments, receive input on concerns, and make final recommendations regarding amending the code. And after months of analysis, collaboration, and attendance at meetings with the Office of Administration, the Court Reporting Board, the Committee on Superior Court, Chief Justice Berch’s Task Force, and the Arizona Judicial Council by Arizona court reporters and members of the Arizona Bar, the Arizona Judicial Council (“AJC”) approved significantly revised amendments to ACJA § 7-206 on March 25, 2014. The Supreme Court Order amending ACJA § 7-206 as approved by the AJC was entered May 21, 2014, and became effective September 15, 2014.

The final amended code is a significant improvement over the initial proposed amendments and goes a long way to ensure fair treatment of all parties in an action, including equal billing to all parties, preserving the confidentiality of the record, and preserving the ethical obligations of court reporters and attorneys alike. Accordingly, certain changes in the final code impact attorneys’ interactions with court reporters and reporting firms. A generalized summary of the more important of these changes to ACJA § 7-206 follows:

1. Individuals and entities, such as national court reporting companies, providing reporting services in Arizona must be registered with the Arizona Supreme Court, must comply with all provisions of ACJA § 7-206, including all ethical obligations in the Code of Conduct, and must submit to the authority of the Arizona Supreme Court.

2. Only an attorney, a party, or a registered reporting firm can retain court reporting services in Arizona cases. Arizona Certified Reporters and Registered Reporting Firms are prohibited from accepting assignments from any other individual or entity.

 

3. Reporters and reporting firms must now provide itemized rate disclosures prior to the commencement of a deposition and must charge all parties the same price for the same product or service.

a. Each invoice attorneys receive from a reporter or reporting firm must include a certification that the invoice and other business terms comply with the ethical obligations set forth in ACJA § 7-206.

b. If an attorney wants to review all parties’ invoices, the attorney must make that request of the Certified Reporter. Upon the attorney’s request, the Certified Reporter must provide copies of all parties’ invoices.

 

4. Reporters and reporting firms in a continuing contractual relationship[1] with “a party, attorney, or an entity with a financial interest in a case” must give written notice of that relationship to attorneys in the case and any unrepresented parties

a. The notice of contract must be made by the reporter and/or firm upon retention of their services and must contain the duration of the contractual relationship and whether it is exclusive.

b. Upon receiving written notice from a reporter or reporting firm that they are in a continuing contractual relationship, attorneys and unrepresented parties have five business days to respond with a written objection. If an attorney or any other relevant party objects, neither that reporter nor that firm can cover the deposition.

 

5. To enhance and ensure security, confidentiality and privacy, reporters and/or reporting firms may release (sell) transcripts only to witnesses, parties, and their attorneys, unless authorized otherwise by court order or agreement of the parties.

6. Attorneys and their clients can no longer receive from Arizona reporters, reporting firms, or their affiliates “additional advocacy or litigation support services, including but not limited to claim investigation assistance, trial preparation assistance, and deposition summaries.”

Except as expressly set forth, attorneys cannot waive the Arizona Certified Reporters’ and Registered Reporting Firms’ duties and obligations under ACJA § 7-206 by disclosure, agreement, stipulation, or otherwise.

Blair Moses is an associate in the Phoenix office of Stinson Leonard Street LLP. She primarily concentrates her practice in the area of commercial litigation, bringing a depth of experience that includes the representation of large corporations, small businesses and individuals. She also has experience representing defendants in labor and employment litigation matters. Prior to practicing law, Blair gained extensive experience in the health care field and she now assists in the representation of health care providers.

More information on Blair is here. And she can be reached at blair.moses@stinsonleonard.com

[1] Under ACJA § 7-206(J)(1)(l), a “continuing contractual relationship” is one where a certified reporter or registered reporting firm has a contractual relationship in which reporting services are provided “in multiple cases with a party, attorney, or an entity with a financial interest in a case.” (emphasis added).

electionsToday, I share some information from the State Bar of Arizona. They have devised a smart and witty way to remind you about ALL the races that can be found on our ballots, and the vital importance of completing that ballot all the way to the end. Here you go:

The November election is just weeks away and soon your friends and family will be asking you the same question they ask every election: How should they vote the judges on the ballot? We want to help, so this election we’ve come up with a way for you to answer that question.

Watch our Finish the Ballot video below:

That’s it.

Send them the Youtube link and the two-minute cartoon will answer their questions. It explains why we vote for judges, and where to find the information to make that vote.

finish_the_ballot_laptop

In fact, it’s something you should send to all your friends whether they ask or not (hey, maybe even you should watch it). Retention elections are an important part of the merit selection process. The more you help you friends and family understand the process, the better it works.

We also have a fun way to promote our Finish the Ballot campaign. Click here to read more about a chance to win $250 in our Instagram “Finish the Ballot” contest. (The page even includes a sample video.)

finish_the_ballot_instagram contest header

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