Courts


The owl of the Superb Owl Night Run with co-organizers Tricia Schafer (left) and Johnny Lookabaugh (right).

The owl of the Superb Owl Night Run with co-organizers Tricia Schafer (left) and Johnny Lookabaugh (right).

You may recall how back in January I predicted a particular legal outcome. A recent contrary result demonstrates why writing rather than lawyer-predicting was a better career course-correction for me.

Back in January, I chuckled over an annual fundraising race called the Superb Owl. Hosted around the time of the Super Bowl, the organizers—and I—thought the charming diction would help the Owl fly beneath the radar of The Big Game’s organizers.

Owls aren't the only wise creature when it comes to avoiding trademark trouble. A lawyers group avoids Super Bowl with their Superb Owl 5K.

Superb? Yes? Super? That question is headed toward litigation.

No so fast.

As we see in last week’s story, the NFL has filed a trademark objection about the race, co-organized by attorney Tricia Schafer. The race is a 5K called the Superb Owl Shuffle. But the website is named www.superbowlshuffle.org. So you see the problem.

As the Superb Owl would probably say, Who who who would have guessed the NFL would be prickly about its trademarks? Who would have predicted that such a smile-inducing name would ruffle feathers?

Not this guy, clearly. Happy running.

Arizona Attorney Magazine July/August 2015 beards and mustaches facial hair

Before I move onto touting our September issue of Arizona Attorney Magazine (which is pretty fantastic, if we do say so ourselves), I have to tip my hat to the July/August issue—specifically, our cover story on the wisdom of your witness having facial hair.

As the authors examine, beards and mustaches can be polarizing. And as you’d guess, there are good ways to do beards, and ways not to.

This past week, I strolled into my office’s lunchroom, where there is a small stack of magazines available for reading (even beyond AzAt; I know – I’m as surprised as you are!). That’s when I spotted a Men’s Fitness from this spring.

And what did I see? Facial hair everywhere. (Click to gigantify the bearded celebs.)

Clearly, a touch or more of scruffiness serves their readership. But even the hirsute magazine gave over a small area to muse in a piece titled “Old Growth: A Beard Can Age You Eight Years.”

Facial hair can age you: Hollywood's been warned.

Facial hair can age you: Hollywood’s been warned.

Ouch,” as the old folks say. Well, love facial hair or hate it, read up on this hairy subject in Arizona Attorney here. After all, our authors have combed through a thicket of research to get you answers.

By the way: We’ve had a good amount of fun this month featuring bearded famous folks on the magazine Facebook page. An example is below. Follow us for all the legal fun.

Yes, Arizona Attorney can get cheeky on its Facebook page. facial hair Nick Offerman

Yes, Arizona Attorney can get cheeky on its Facebook page.

It’s always good to see an Arizona Justice in the news.

Last week, I mentioned a draft report from an Arizona Supreme Court committee that examines many elements of the State Bar of Arizona. And this week, task force chair and Arizona Justice Rebecca White Berch spoke on the PBS program Horizon about the group’s work.

Justice Berch also invited viewers to read the report and to send their own comments via email to bargovernance@courts.az.gov.

Justice Berch and Horizon provide the email for public comment on the task force report.

Justice Berch and Horizon provide the email for public comment on the task force report.

The task force’s website includes detail about its members, information about its many meetings, and a link to the draft report.

You can link directly to the report here.

On Horizon, Justice Berch discussed why the task force chose to keep a mandatory bar (with one dissent), and how important it is for all attorneys to pay for the various programs whether they use them or not.

I have a link to the Horizon program with the Justice Berch interview, though I hesitate to have you click it. AZPBS is notorious for posting a link that should work but really won’t be ready for days (<buffer> <buffer> <buffer>). Fingers crossed on this link.

Justice Rebecca White Berch speaks with Horizon host Ted Simons, Aug. 18, 2015.

Justice Rebecca White Berch speaks with Horizon host Ted Simons, Aug. 18, 2015.

Judiciary Considers Scrapping 'Ancient Documents' Rule

A question for trial lawyers today: Have you ever used the ancient documents exception to the hearsay rule?

I must say, I’ve never heard someone use it, as there’s usually another way to skin the cat. And if my impression is correct that its use is rare, then maybe having the rule be eliminated may not be a bad thing.

What got me thinking about this was a story this week about an examination of that very exception by some learned folks. Some on the federal judiciary’s evidence rules advisory committee fear that the growing prevalence of electronic documents—which essentially may last forever—may mean the exception swallows the rule.

As the news story reports, “Now that documents can be stored electronically for long periods of time, a committee of federal judges that reviews the evidence rules is worried courts will face a flood of requests to admit documents under the exception.”

One law professor who teaches evidence says she thinks this change is a good idea:

Professor Liesa Richter, Univ. of Oklahoma College of Law

Professor Liesa Richter, Univ. of Oklahoma College of Law

“Age is no guarantee of reliability,” said the University of Oklahoma College of Law’s Liesa Richter. “Now that we have this flood of electronically stored information that never goes away—it doesn’t disappear ever—[there are] just so many factual assertions out there electronically that will be available for savvy lawyers to dig up and admit. I think it is a real problem and a real concern.”

U.S. District Judge William Sessions III chairs the advisory committee on evidence rules, and he says, “A document does not become reliable just because it is old; and a document does not magically become reliable enough to escape the rule against hearsay on the day it turns 20. The committee concluded that the exception has been tolerated because it has been used so infrequently, and usually because there is no other evidence on point.”

Judges and law professors coming together to agree there’s more to reliability than age? Never thought I’d see the day.

You can read the whole story here.

So what do you think? Tempest in a teapot? Or are there good reasons to scrap the “ancient documents” rule? Who knows? There may be a magazine article or guest blog post in your future!

Tom Brady courtroom artist, panned online, apologizes

A Tom Brady courtroom artist was panned online and has apologized. Because priorities.

It takes a lot to get large media outfits interested on a deep level with the justice system. Despite how central our courts and laws are to every area of life, it usually takes a special element—like a notorious murderess or, say, a football player—to garner serious coverage.

Well, if you combine a famous baller with what’s widely perceived to be a visual fail, you’ve got a story the press wants to cover.

That’s what happened as New England Patriots’ quarterback Tom Brady sat in a courtroom. And the story that emerged was about the lack of artistic justice he received from a New York Times sketch artist.

You can see the artwork above. While the Patriots fans among my readers cry deep and abiding Tom Brady tears, I’ll simply say, first … I have always been a big fan of the courtroom sketch artist, and I’ve covered their exploits before. Whether you’re drawing John Gotti, Tom Brady, or some other dissembler (sorry to bring on more tears, Pats fans), the job of the courtroom artist is a tough one.

Obergefell v. Hodges sketch by Arthur Lien.

Obergefell v. Hodges sketch by Arthur Lien.

So evocative can a courtroom sketch be that we’ll be running one (by Arthur Lien) in the next Arizona Attorney Magazine. It depicts the Supreme Court as the ruling in the same-sex marriage case Obergefell v. Hodges was announced. (And yes, we paid Art for his work!)

That’s why the NYT story irked as much as it informed. Brady was in federal court appealing his four-game suspension (The injustice! The horror!), and artist Jane Rosenberg did her best to quickly capture the essence of the sullied QB.

And, O the anger her work wrought, as people emerged to impugn her skill and wax poetic about Brady’s baby-faced visage.

Ultimately, the twittersphere would have its justice, as Rosenberg offered an apology of sorts:

“I’m getting bad criticism that I made him look like Lurch,” she said, referring to the Addams Family character. “And obviously I apologize to Tom Brady for not making him as good-looking as he is.”

Hey, Ms. Rosenberg, I’ve got a suggestion: Apologize for nothing. NOTHING.

After all, we have to be open to a deeper possibility. As an artist, Rosenberg was tapping a deep well of resonance. Maybe she drew not what was precisely before her, but what lay beneath.

Oliver Wilde offers an analogue in The Picture of Dorian Gray. Who’s to say what evil lurks in the hearts of men?

Oliver Wilde's Dorian Gray is a pretty-boy, but the painting reveals a deeper story.

Oliver Wilde’s Dorian Gray is a pretty-boy, but the painting reveals a deeper story.

And I reached deep within and tried my own hand at drawing a likeness of Tom Brady, but this is the best I could do.

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Cue the ire of the Patriots’ fans and Brady defenders (some of whom—men and women both—have told me, “He’s too cute to be guilty,” reminding me the jury system—and the human race—is a crap shoot).

I offer a hat-tip to Tim Chester of Mashable for the story link.

Here’s wishing you a great—and fully inflated—weekend.

A Supreme Court task force report on the State Bar of Arizona is described by Justice Rebecca Berch, via video available on the Court's website.

A Supreme Court task force report on the State Bar of Arizona is described by Justice Rebecca Berch, via video available on the Court’s website.

In July 2014, Chief Justice Scott Bales signed an administrative order creating a task force to examine “the mission and governance of the State Bar.” The new group was charged with drafting its report by September 1, 2015. That draft report is now available, and the Court is seeking comment.

The task force’s website includes detail about its members, information about its many meetings, and a link to the draft report.

You can link directly to the report here.

Arizona_Supreme_Court_SealAlso on the website is an introductory video by Justice Rebecca White Berch, who chaired the task force.

Among multiple recommendations, the task force recommends: a reduction in the size of the State Bar Board of Governors (from 30 to between 15 and 18); and clarification of the Bar’s primary mission, which is to serve and protect the public.

One of the elements discussed by the task force was whether the Bar should be maintained as an integrated (mandatory) organization. The task force recommended that it should (though the decision was not unanimous among task force members).

After reading the report, public comment on it can be submitted by email to BarGovernance@courts.az.gov.

You can read Chief Justice Bales’ original Administrative Order here.

More information about the report (and maybe some coverage in Arizona Attorney Magazine) will follow as we head into the fall.

Washington, DC, murals, courtesy of Google.org, commemorate the ADA's 30th anniversary. (And yes, they're on stairs.)

Washington, DC, murals, courtesy of Google.org, commemorate the ADA’s 30th anniversary. (And yes, they’re on stairs.)

Yesterday marked a significant anniversary of the passage of the Americans With Disabilities Act. Reaching 30 years is definitely momentous, so I’ll probably cover it a few times this week. Today, some positive news about the ADA, and a troubling sign of how far we have to go.

As the Washington Post reports:

“Take a walk around D.C. this weekend, and you may stumble across some newly installed murals honoring leaders in the fight for equality for people with disabilities. This Sunday marks the 25th anniversary of the passage of the Americans with Disability Act—landmark legislation signed into law in 1990 that prohibits discrimination on the basis of someone’s disability.”

“Google.org—the philanthropic arm of Google—is celebrating the anniversary and the start of the Special Olympics this weekend with these installations throughout the city. There are 10 temporary pieces at six locations in the city. The murals are stickers, illustrated by Darren Booth, and will be removed Sunday.”

You can read the whole story here. But as a friend, disability advocate Jennifer Longdon, mused, the ADA-celebration murals are on stairs? Really? Ya really do have to wonder.

And lest we get too high-falutin’ in our self-praise as a nation, you really should read a companion piece from the Post. It describes the ultimately unsuccessful efforts by another advocate to travel around Washington during the celebrations. Thirty years later, public accommodations are too often that in name only.

Here’s the story about Professor Dot Nary.

Professor Dot Nary in the Washington Post.

Professor Dot Nary in the Washington Post.

And as long as I’m mentioning self-praise, it’s worth noting, WaPo, that terms like “wheelchair-bound” are no longer acceptable, even in journo style guides.

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