Oregon State Bar Bulletin rural practice spread

Does rural law practice beckon? Two different bar association magazines say yes.

This week I am in Portland, Oregon, for the first time. Quite an amazing place.

I am learning and presenting at a conference of communications folks. (Here’s what I’m doing.) And I’m working hard to get out of the hotel occasionally to enjoy a terrific city. Well, whatever I do, I’ll put a bird on it. (More on that tomorrow.)

As I like to do, I point you today toward some law content connected to the place I’m visiting. And up here in the state whose motto is “She Flies With Her Own Wings” (explanations welcome), I recommend to you some work of the Oregon State Bar Association—specifically an two articles in their current Bar Bulletin.

In an article by writer Melody Finnemore, we get to hear from lawyers who are in the courtroom—as jurors. The picture they paint is not always a good one.

That ranks up there with other great story ideas I should emulate for Arizona Attorney Magazine.

You can read the complete version here. Here is the opening of the insightful article:

“Channing Bennett has seen his share of time in the courtroom, first as a litigator representing clients in civil cases and later as a volunteer judge pro tem in Marion County Circuit Court. The Salem attorney is a hearings referee for the Oregon Judicial Department. Now, he knows firsthand the emotional anguish many of his clients have experienced during a trial.”

Oregon State Bar logo“‘I’ve gained a lot of empathy for my clients going through the trial process. You feel very helpless and you get frustrated with the courts, even as an experienced observer,’ he says.”

“Bennett is one of the scores of Oregon attorneys who have been plaintiffs in a case, had to hire an attorney, been the victim of a crime or witnessed a crime, or participated in the Oregon State Bar disciplinary system. Some have experienced the state’s legal system from multiple perspectives — all from a very different place than where they are used to sitting during the legal process.”

“Like Bennett, most of the attorneys who shared their stories with the Bulletin didn’t exactly enjoy a positive experience. Yet they overwhelmingly said they learned something from it, ranging from greater empathy for clients to a broader understanding of what it means to be a good lawyer.”

Just as intriguing is their current cover story for the August/September issue. Written by Cliff Collins, it is titled “Opportunity Knocks in Rural Oregon: Small Towns Beckon Job-Seeking Lawyers.”

That was well written, but it also hit home because it reminded me immediately of an essay that resides in a recent issue of Arizona Attorney. Penned by lawyer Laura Cardinal, it makes a similar point about the good and successful life attorneys may find outside the big cities. And while you do that, the authors argue, you’ll be helping many people.

You can find Laura’s article here. Let me know what you think of both pieces.

Laura Cardinal writes on rural law practice, Arizona Attorney Magazine

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A tough and sometimes controversial job: The Jury, by John Morgan painted in 1861).

A tough and sometimes controversial job: The Jury, by John Morgan (painted in 1861).

Juries simply fascinate us—like an uncle who is typically wise but occasionally demented. All in all, though, he’s the one we go to when we need advice.

Recently, a slew of material has flooded my way regarding juries, good and bad. And I could use your help.

I’ve been collaborating with an attorney on an article about cameras in the courtroom, and how they may affect jurors and other participants. We are covering a lot of ground, but it still would be nice to land on an insightful and local angle that illuminates the topic in new ways.

What do you think of cameras in the courtroom? And more specifically, what angle or hook would lead you to read a story that has percolated nationwide for decades?

Meanwhile, a colleague shared a dialogue he had heard regarding state laws that prohibit jurors from making money (from books or interviews) after a trial. The question arose during Florida’s prosecution of George Zimmerman in Trayvon Martin’s death. But after sitting through months of an Arizona trial of Jodi Arias, we wonder about the same thing here.

We are all accustomed to laws denying convicted people the opportunity to profit from their own stories. But restrictions on jurors are less often discussed; usually they come to light after major prosecutions, such as those against O. J. Simpson or the Menendez brothers. A recent story details what a Florida legislator proposed in the panhandle state. The law:

“would make it a third-degree felony for jurors to sell their stories within 270 days of serving on a jury. State Rep. Scott Randolph, D-Orlando, said the law would also apply to media organizations who try to pay jurors for their stories. It would not prohibit jurors from speaking freely without compensation or payment.”

The news squib is here. So under the law jurors would be free to speak with the trial’s lawyers, but could not sell their stories. What do you think?

Judge Sherry Stephens presided over the Jodi Arias trial, which involved issues of juror speech and cameras in the courtroom. Here, she urges the jury to continue deliberating after the jury delivered a message that they were deadlocked on a penalty for Arias, May 22, 2013. (AP Photo/The Arizona Republic, Rob Schumacher, Pool)

Judge Sherry Stephens presided over the Jodi Arias trial, which involved issues of juror speech and cameras in the courtroom. Here, she urges the jury to continue deliberating after the jury delivered a message that they were deadlocked on a penalty for Arias, May 22, 2013. (AP Photo/The Arizona Republic, Rob Schumacher, Pool)

Meantime, you may recall the story of the judge who put a gag order on jury members, and it affected their speech, to anyone, whether or not for pay. The article was from way back in 1998, ancient history. But I do not know if the unique order, which was upheld by the Fifth Circuit, was ever overturned.

It is a curious idea, the one where judges feel the need to protect the nebulous “judicial system,” even if it infringes on First Amendment rights. How many jurors expect that a do-not-talk order will continue for days, months and years after a trial is complete?

(A more rare instance—in which a juror is retained as a trial consultant in a retrial of the original case—is discussed here. Also examined is what’s known as the Juror Integrity Act.)

Another article from the early 2000’s explains how a gag order was enforced until after the appeals. And it overtly affected both the media and the lawyers.

Here is a nice summary of the law on the topic of juror speech.

Both of these topics—cameras in the courtroom and juror speech—implicate substantial constitutional issues. When the right to free speech runs hard against the right to a fair trial, the second should win. But the facts may not be so bald, and judges and legislators must craft solutions that aid both.

Do those topics interest you? If so, what magazine story approach would cause you to say, “Wow. That’s surprising”?

Yesterday, I was looking for something on the CNN website (good luck) when I came across their recently omnipresent viewer-discretion warning about the Jodi Arias trial. Here’s a screen-grab (the big honking arrow is mine, though the station bosses might decide they like it).

CNN's Jodi Arias trial viewer-discretion warning

CNN’s Jodi Arias trial viewer-discretion warning

I’ve watched a bit of the Arias trial, but not much. Given the questions I’ve received from friends and colleagues around the country (usually beginning, “Let me get this straight …”), it’s helpful for me to know something about the case facts.

Long after those facts are adjudicated, though, the complex legal issues will be debated (probably with no viewer-discretion warning required). And even beyond that, we’ll assess the effectiveness of juror questions.

Yes, there have been a few tawdry inquiries from those colleagues around the country. But more often, I have been surprised at the number of them who have asked about juror questions: “You allow that in Arizona?”

Arizona Attorney Magazine cover, February 2001

Arizona Attorney Magazine cover, February 2001

Indeed we do, as well as note-taking and some other semi-unique elements.

The number of juror questions posed in this trial may be remarkable, but the fact that they may inquire at all has been a part of Arizona jurisprudence for a long time now.

For some background on that, you should read “O Pioneer,” our 2001 article about then-Judge Michael Dann. He and others were leaders in initiatives to transform the jury process. Other states have participated, but Arizona was (and is) a leader.

Posted on their website, the Arizona Supreme Court has the remarkable original report (from 1994 and 1998) called “The Power of 12.” It’s in two parts, here and here. It was drafted by the Court’s Committee on the More Effective Use of Juries.

For more recent coverage of courts that permit juror questions, go here. As the story opens:

“A small number of states have changed their laws and court rules to allow jurors to ask witnesses questions, either orally or in writing through the judge. Written questions submitted in advanced allow attorneys for both sides to make objections based either on the ground they would violate the rules governing the admission of evidence or would result in prejudice against their clients.”

Michael Dann, former Judge on the Superior Court for Maricopa County

Michael Dann, former Judge on the Superior Court for Maricopa County

“The states that expressly encourage judges to allow jurors to question witnesses are Arizona, Arkansas, Florida, Indiana, Iowa, Kentucky, Nevada and North Carolina. Out of these jurisdictions, Arizona, Florida, and Kentucky require that judges allow jurors to ask written questions. The respective highest state courts of Indiana and Kentucky have ruled jurors have a right to ask questions of witnesses.”

But changes like this can lead to unpredictable results. You should read this Washington Post story from 2007, titled “Jurors’ Queries Yield Insights—and Laughs,” which opens with a humorous anecdote showing that jurors may focus on areas that counsel may find irrelevant:

“Former New York Times reporter Judith Miller was on the witness stand yesterday and a juror wanted to know why she had decided to go to jail for 85 days before agreeing to testify about her conversations with I. Lewis ‘Scooter’ Libby.”

“Another juror had a different kind of question for Miller about her notes from a conversation with Libby: Was storing notebooks in a large shopping bag under her desk her standard method for saving her notes?”

“So the jurors asked.”

For trial lawyer readers, have you found juror questions to be a feature that improves the process? Have you found queries annoying? Or have they given you an opportunity to clarify issues that may be blocking a jury decision?

Write to me at arizona.attorney@azbar.org.