Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

The fellows over at the Drug and Device Law Blog have taken time away from their usual discussions of pharmaceutical and medical device product liability litigation to reflect upon the importance of the standard of review in appellate cases.  

Recalling a former life as a clerk at the Ninth Circuit,  DDL notes that “the ‘abuse of discretion’ standard of review meant that we should get out the ‘affirmed in a heartbeat’ stamp, while a ‘de novo’ standard of review meant that there would be a serious shooting match.” 

DDL appropriately reminds appellate attorneys that the appellants wants to find a way to require de novo review, while the appellee benefits from characterizing the standard as clear error or abuse of discretion.  They also offer a handy link to the Ninth Circuit’s standard of review outline, which is updated yearly with the most recent cases defining the standard of review for various issues. 

Thanks to DDL for the timely reminder of the Ninth Circuit’s outline!

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It is well known, of course, that Ginger Rogers did everything that Fred Astaire did, but backwards and in high heels.  

I personally eschew the stilettos, but have certainly seen many a fashionably high heel on my sister attorneys.  So, is it harder to practice law in high heels?

The answer to that question is yes.  Or, at least, that is the title of a book offering the views of women who practice law.  It's Harder in Heels": Essays by Women Lawyers Achieving Work-Life Balance, edited by Prof. Jacquelyn H. Slotkin and Samatha Slotkin-Goodman.

This book contains essays by and about women lawyers.  Note that I haven’t put this up in the When Lawyers Write feature, and for good reason – most of the women who describe their career paths here are not blessed with story telling skills.

Nevertheless, this book offers some insights into the challenges women face in this profession, and a variety of responses to those challenges.

As women in this profession, we have bonded together to discuss the problems we face with online networking resources such as Ms. JD  or organizations such as the National Assocition of Women Lawyers-NAWL (formed in 1899!)   

We study the challenges we face through commissions such as  the ABA Commission on Women in the Profession.  

We even hold summits on improving our lot, such as the LexisNexis Women in the Legal Profession Summit: Rainmaking, Negotiating and Collaborative Development.

But what a book like It’s Harder in Heels shows is that each of us will face challenges that may be superficially similar, but are ultimately unique and personal to us.  And each of us must decide how we personally will respond to those challenges.

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Yet another sentence enhancer case, but this time, the defendant won!

The Armed Career Criminal Act adds another 15 year sentence to where a felon possessing a firearm had three or more prior convictions for “violent felonies.”  Violent felony was defined as a crime punishable by more than one year “that is burglary, arson, extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.”

Burgess, who apparently likes to drink and drive, had 12 convictions for DUI in New Mexico, where, after a third such conviction, the offense becomes a felony.  Apparently noting the risk posed by those who drive while intoxicate, found Burgess has the requisite three or more violent felony offenses to qualify for the additional 15 years.  (It’s not clear from the opinion, but apparently these were also the felonies that made him a felon unable to possess a gun. )

The Court found DUI was not within the intended scope of the sentence enhancer. Instead, the enhancer applies only to crimes similar to those offenses listed, rather than all risky crimes. The Court noted that the listed crimes generally involves purposeful, violent, and aggressive conduct whereas DUI  does not.

We’ve all seen the videos of the happy drunks who speed merrily down the highways, so I guess this is true that DUI is not necessarily violent or aggressive (purposeful, of course, is also debatable, but the drinking part usually is Personally, I think the selected examples are a bit odd – no robbery, no sexual assault, no murder – crimes I tend to think of as violent. ).  While arson, using explosives ,and extortion pretty much fit, I am not so sure that burglary is necessarily, or even usually,  violent or “aggressive.” 

Breyer wrote the majority opinion; Roberts, Stevens, Kennedy, and Ginsberg joined. 

Scalia concurred in a separate opinion. He disagreed with the majority’s conclusion that the statute did not intend to encompass all felonies that have the potential for risk of harm to others. He just doesn’t buy that DUI encompasses such a risk.  In fact, he does not think that drunk driving poses as least a serious risk of injury to another as burglary.  

Alito dissented with Souter and Thomas joining.

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Or, at least, it is for sentence enhancement purposes under the Controlled Substances Act. 21 U.S.C. § 841 (b)(1)(A).   So said a unanimous U.S. Supreme Court in Burgess v. U.S., released today. 

Burgess pleaded guilty of conspiracy to posses within intent to distribute 50 grams or more cocaine, and had a previous conviction from South Carolina for possession. S.C defined the offense as a misdemeanor, but it carried a maximum sentence of two years. 

Section 802 contains a definition of “felony” that defers to state law classifications of a crime, and a definition of “felony drug offense” that bases the classification upon a sentence of at least one year imprisonment being possible.   The Court found that Congress intended to use the latter definition when it use the term of art “felony drug offense” in its sentence enhancing provision. 

The sentence enhancer doubles the minimum sentence for this offense.

I can't argue with the Court's reasoning here; the use of the term should follow the term's definition.

 But Is there any chance that Congress will ever recognize the futility of the war on drugs?  We waste so much on trying to stop what obviously cannot be stopped. 

So far this year - and remember, this is only April, the U.S., federal and state governments have spent more than 14 billion on the war on drugs.  See the Drug War Clock.

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In Baze v. Rees, announced today, the U.S. Supreme Court rejected claims that execution by lethal injection, at least using the 3 drug cocktail employed by the State of Kentucky,  violates the 8^th Amendment. 

Chief Justice John Roberts, writing in a plurality opinion, stated, “We ... agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment."  The cocktail in question consists of an anesthetizing drug administered first, followed by two admittedly painful drugs that actually cause death.  

Justices Kennedy and Alito joined in Roberts’ opinion. Justices Stevens joined in the outcome, but doesn’t consider this debate over. Justices Thomas and Scalia differ with Robert’s formulation of the standard for cruel and unusual punishments, but concur in the outcome. Justice Breyer agreed there was no evidence that the method created a risk of unnecessary suffering, but noted the lawfulness of the penalty itself was not before the court.  

Justices Ruth Bader Ginsburg and David Souter dissented, finding the evidence sufficient to establish that the combination of drugs used creates a risk of unnecessary suffering, due to Kentucky’s failure to require protocols to insure the inmate is actually unconscious before the two lethal drugs are administered.

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I am taking a couple days off from my law practice to work on my so-called writing career. The Las Vegas Writer’s Conference, which is sponsored by the Henderson Writers Group, is being held this weekend at Sam’s Town. 

The Henderson Writers group publishes  anthologies of short stories by its members.    The latest, Writer's Bloc II, contains one of my short stories: "The Lost Art of Conversation. "  I'm not quite, sure, but I think the book will be available at the conference.   My other stuff definitely will be.

Meanwhile, I am giving three workshops:

On Thursday afternoon, I’ll give Hero v. Villain: Developing Plot through the Character of the Protagonist and Antagonist.   Ahem - wherein I explain that whole “character equals plot” concept.  This is the 1/2 day workshop - I really do explain everything.  Seriously.

Friday afternoon, I’ll give Anatomy of a Scene: Creating Full-Bodied Scenes for your Novel.  find out what scenes really have to do.  Chances are,

Saturday afternoon, I’ll give Putting Personality on the Page: Showing Character to the Reader

In between, I’ll be joyfully soaking up the atmosphere found at any gathering of writers, chatting about such topics as character, plot, synopses, industry trends, and my personal favorite, villain theory.  no kidding - there is such a  thing as villain theory. 

This conference has grown bigger each year (this is the fifth, I believe). In fact, it is a sell out this year.

However, there is a reception Thursday night, 7 pm, open to the public, where one can meet and mingle with the attendees, the speakers, and a host of Stephens Press authors.  

 Most notable, IMO,  of the out of town authors visiting is New York Times bestselling author Bob Mayer. In addition to his quite successful solo career, he writes with my very favorite living author, Jenny Crusie.  See their books at http://www.crusiemayer.com/.  Lots of dead bodies, but very funny stuff. 

I like funny.

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For my part, the answer to that question has always been, “It depends on the woman.” 

(Does anyone ever ask “What do men want?” Not that I’ve noticed. But spare me any nonsense that this is because no one cares what men want. That’s not it at all. )

Personal rants aside, however, it is nice that the latest issue of The Complete Lawyer focuses on “What Do Women Really Want.”  The site offers a whole slew of articles that discuss progress, and lack thereof, in the situation of women in the legal profession. Among these:

Women Are Taking Matters Into Their Own Hands“We’ve been talking about gender issues for 20 years. Let’s see some progress!” By Holly English

The "Family-Friendly" Workplace Is Inadequate As currently practiced, they are mostly superficial, piecemeal and ultimately inadequate. By Ellen Ostrow

What Makes A "Best Law Firm For Women?" Analyzing 2007 trends of work/life balance and women at law firms. By Deborah Epstein Henry

Most interesting to me was Women Attorneys Share Work-Life Balance Tips. To counter the unrealistic “you-can-have-it-all” mindset, most women give themselves a heavy dose of reality. By Judi Craig

Nice, huh? We “want it all,” and therefore, have to be reminded that this is unrealistic. Frequently repeated tip: let your housework slide.  (There were variations on this – hire a maid, marry a house-husband, etc.)  

Now, anyone who has seen my house knows that this is advice to which I have long adhered.  I once successfully explained the mess in my house to a surprise visitor with the claim that my house had been ransacked and the police didn’t want me to touch anything until they came.  

But isn’t that advice just the perfect example of how male and female lawyers experience life differently? Has there ever an article on achieving work/life balance   directed to lawyers in general (i.e., male lawyers), rather than to female lawyers, that suggested blowing off cleaning the toilet and doing dishes as a way to achieve some personal time? 

If so, point me to it!

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As of April 10, new rules for judicial conduct are in effect. However,  in posting the new rules, the Ninth Circuit felt the need to remind potential complainants that while, any person can file a complaint about a federal judge’s conduct, conduct does not  mean decision. In other words, don’t grieve a judge because you don’t like the ruling.

Here are the links the Court posted about the new rules and the complaint form:

Complaint Form (Complaint of Judicial Misconduct or Disability)

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The AP reports that a man who has made racially charged threats for decades, including threats against U.S. Supreme Court Justice Clarence Thomas, and the Supreme court’s building, was finally tracked down after he began sending his threats via email instead of through the U.S. Mail. See FBI Describes Search for Letter-Writer Charged With Threatening Justice Thomas and High Court Building.

The 46 year man is reported to live in his parents’ house. No word on whether he lived in the basement of the house, but somehow, that seem likely. . .

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