So I took a little break from blogging about criminal defense, DUI defense, civil trials and matters of wrongful death. And then things just started "popping up." A new case or twelve. A kid in jail who just could not get it together. A former Marine facing life changing decisions. The mentally ill – fearing life and death as they


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Years ago I was getting ready for a monster trial – pitting the ultimate power of the United States against a little guy who held out in the face of an all out attack on his home. People died. Protestors gathered. Television cameras rolled and major magazines wrote headlines in anticipation of an almost certain end. Tanks and helicopters ferried officers  and snipers about until the thing finally ended. 

As the time for trial neared – nearly nine months after the siege – the question of whether we could settle the case arose. The Sage – a burley mountain man of a lawyer who was our leader – looked me square in the eyes and said it best: 

"We only go to trial if we have to. If we can settle any case and walk away with our heads up, that’s what we do."

To win your case at trial you have to know if it can be won. Then again – what is winning?

If you are charged with aggravated assault with a deadly weapon (pointing a gun at someone, a felony) and the government offers to accept a plea to simple assault (a misdemeanor), should you go to trial? I suppose it depends on your tolerance for the pain of a possible felony conviction. Sometimes you know that what you did went too far, and you can swallow a little crow and pay a small price to avoid the possibility of a felony conviction. Sometimes you can’t. And sometimes the government makes that decision for you – they refuse to negotiate and settle. 

Then you try your case.

Here’s the starting point: is there an alternative to trial? 

Last summer we prepared for a wrongful death trial in Wyoming. Our clients had lost their son while he was skiing at a well-known ski resort. This was the second such case we had handled against that resort in the past five years or so. In each case, the lawyers were the same, the decision-makers were the same, even the experts were the same. Two lives lost. Families destroyed. The ski industry almost never settles until you are almost at trial. They spend money defending their industry, even in the face of an unnecessary death. 

The case settled just a few weeks before the trial was to start. Why? Because each side understood the risk of going to trial. We all knew that juries are impossible to predict, regardless of how many mock trials or focus groups are done. And we did not have to try the case to win.

Our clients had already lost their son. They wanted a resolution that mostly included an acknowledgement of their loss and the defendants’ partial responsibility. A mediated settlement achieved that solution. 

If you have a case – civil or criminal – and a trial is your only way out, by all means, go and fight and do everything you can to "win." But after 31 years in the courts, I can tall you the Sage is right. If there is another solution, explore that option first. 

Think you have a civil case? Wrongful death? Personal injury? Wrongful discharge? Or a criminal matter? Maybe we can help you win – whether you go to court or not.

 


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A former engineer has been charged with destroying over 200 emails that were requested by prosecutors and investigators in the 2010 BP Gulf oil disaster. One of those emails reported that the spill was far worse than had been reported by BP.

According to CNN, Kurt Mix faces charges that he intentionally destroyed evidence that had been requested by


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 Today’s Idaho Statesman contains an article about a lawsuit filed by a young woman who was at a University of Idaho frat party, apparently got intoxicated and fell out of a third story window.  The issue here is liability: is the University or state board of education liable for injuries sustained by a person who is herself violating the law by illegally consuming alcohol? More interesting than the legal question is the comment section of the on-line version of the story – and it serves as a good reminder of how public perception plays a role in our assessment of any civil case. As the lawyer looking at a personal injury case or a wrongful death case, I always start with the obvious – how will the man on the street look at the facts of this case? After all, if the case goes to a jury you will be asking the man on the street for money.

As you might expect, the plaintiff in the U of I case was seriously injured, and it seems likely mounting medical and rehabilitation expenses have motivated her and her family to look for some help in trying to rebuild the young woman’s life. She claims generally that the University and the state board of education did not do enough to safeguard her time at the University. Had window locks or similar devices been installed, perhaps she would not have fallen out of the window and been so seriously injured. In legal terms we would talk about causation here – was the University’s failure the cause of the injury or was there another intervening cause?  Maybe her voluntary intoxication?

Check out the comments to the story to see what a tough case this might be to win.  Most of the folks posting their "two cents worth" assume the case is frivolous or absurd. As I write this, only one post speaks to the question of whether the University has a duty to do something to safeguard students in the face of known underage drinking at frat parties. And our answers to this question likely are influenced by our own behaviors as college students, and the fear we have as parents of college students that they get drunk and end up with some serious injury.

Shouldn’t the law protect people at their weakest moments? Shouldn’t it protect us – to some degree – against ourselves? Can it? 

This is a great case to watch for anyone interested in the intersection of personal responsibility and expected campus party behavior. The plaintiffs have a long battle before a jury considers the question of responsibility here. And we might check back in on this one when the question of summary judgment arises.

 


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The National Institute of Standards and Technology (NIST) recently identified 149 potential sources of human error in the analysis of crime scene fingerprints.  In an article published by NIST, the results of a study by a working group of 34 scientists, NIST recommends changes to reduce human error and make conclusions more reliable.  You can download the report at this site.

Fingerprint evidence is difficult to deal with in trial because the examiner offers his or her "opinion" as if it were indisputable fact. In truth, the examiner identifies a number of points of comparison and then, if similar to the known sample (for example, from our client), declares that the prints "match."  He or she may use fewer than 7 points of comparison in many jurisdictions and still declare the "match."

How do you handle this type of evidence at trial?  Start with NIST article and think about the issue as if it was any other opinion, subject to attack on that basis. Expert opinions are conclusions based on a review of facts (like points of comparison on fingerprints), and are subject to human error. Opinion testimony is also subject to cross-examination for bias (testimony that favors a position) and prejudice (testimony that opposes a position).  For example, an examiner may be part of the "prosecution team," with an agenda to obtain a conviction.  He or she may acknowledge that there are no real standards with respect to how many points of comparison are required to state the opinion. Perhaps he or she has been retained in a case and has been paid for the opinion.  

My point is simple – treat this witness just like any other "expert" and cut away at credibility, in part by focussing some of your cross-examination on human error.

But recognize that jurors love "scientific" evidence.  Science has certainty, or at least the appearance of certainty, for that moment in time. Turns out the earth is not flat – regardless of the opinions offered to the contrary. And maybe that "matching" fingerprint is a match only because the analysts are subject to human error. Jurors will need a reason (or 149) to not believe the conclusion that the prints match, so go slow and go broad. The more potential doubt the expert can concede, the better you will do. 

 


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 If you have been injured by an Idaho state, county, or city employee and you want to bring a civil lawsuit for damages, you MUST file a notice of tort claim before you can bring a lawsuit to recover for your injuries. Even if the potential defendant is not an employee – you still must file the notice of tort claim to have a chance to recover money damages from injuries or death that resulted from a government employee or agent’s negligence.  The law in Idaho requires that the tort claims notice must be filed WITHIN 180 days of the date of your injuries. Again, if you do not file the notice of tort claims within that time, you HAVE NO RIGHT TO SUE.  

If your case involves any of the following types of entities or their employees or agents, you will need to file a Tort Claims Notice before you can bring suit:

  • State office or department;
  • State agency, authority, commission or board;
  • State hospital;
  • State college or university; 
  • County;
  • City;
  • Municipal Corporation;
  • Health District;
  • School District;
  • Irrigation District;
  • Special Improvement or Taxing District;
  • Hospital or Nursing Home established by a County or City;
  • Any other State or local governmental entity

There is no "form" that is required for your tort claims notice, but it must include certain information including the conduct and circumstances which brought about the injury; the nature of the injury or damage; the time and place the injury or damage occurred; the names of all persons involved; the amount of damages claimed; the residence of the claimant. 

This is a very important requirement that you may not get right if you rely on your own understanding of the law. If you get this one wrong – you have no case, so get some help. Call a lawyer who has experience with this. I have had to tell that potential client that his right to sue under state law was gone because he had failed to file a proper notice of tort claim, and that was a conversation I will never forget. So get some help.

 


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This past month has resulted in at least two car-bicycle collisions, each with its own tragic consequence. Several weeks ago, Boise Police Officer Chris Cowling was struck by a driver in Caldwell. Officer Cowling was the victim of a hit and run that has left him hospitalized and facing a long recovery. A little more than a week ago another Boise bicycle rider was struck by a car making a left turn. That driver was cited for an infraction. Some might say that this year has been kinder to bicycle riders than last year – when three riders were killed. Here are three things you need to know if you have been hit by an Idaho driver while riding your bike:

First – you have the right to collect your damages from the driver of a vehicle that strikes you while riding your bike, but bicycle riders have obligations and duties to others on the road too. Those duties include your duty to follow the traffic laws. If you fail to follow those laws and are struck as a result, your own negligence may preclude a full recovery.

Second – like any other civil action in Idaho, there are time limitations on your right to recover. Generally in Idaho a civil action for negligence requires that you commence your suit in two years. The actual statute may give you more time if you were a minor at the time.

Third – you need to keep good track of the records that demonstrate your damages. Keep copies of those medical bills and pharmacy records so that you can demonstrate your actual damages. The same is true of your lost time at work. And keep a simple log of your recovery – who you saw, what physical therapy or medical visit occurred and when, and how you felt.

Most importantly, take time to heal. We ride because we love being out there on the road – so get back in shape and back out with friends riding in Boise. 

I was reminded how dangerous riding bikes in Boise can be last night when a car decided to play "chicken" with me as I was riding in Columbia Village. My iPhone camera did not capture that blue sedan as it bore down on me – and I chased the driver back to Federal Way to get the license number, but never quite got there. Here’s hoping that idiot does not strike some rider – and here’s hoping Chris Cowling and other cyclists hit recently on the roads have a full recovery.


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When a police officer goes too far – and uses excessive force – he can be held accountable for the harm he causes. Police officers have a tough job. We rely on them to keep us safe, and most of the time an officer uses force it is justified. Still, if you have been harmed by the actions of a police officer, you may have a case. The officer and his or her agency may be responsible for your damages.

Holding a law enforcement officer accountable is not an easy assignment. The evidence must make it clear that the force used was unreasonable or unnecessary. For example, if an officer used a baton or stun gun on someone who was simply arguing whether he or she had been speeding, a case might be made that the officer had used excessive force.

Here are three things to keep in mind about your potential excessive force claim:

First, a law enforcement officer may use force that is necessary under the circumstances presented. So not every use of force will result in a case.
Second, juries want to believe that law enforcement officers “did the right thing” when confronted with a tough situation. This means that you will likely start at a disadvantage when it comes to credibility, so your choice of a lawyer to handle the case is critical to your possible recovery.
Finally, there are procedural hurdles designed or intended to keep you out of court and to limit your recovery. Do not wait to contact an attorney and review your rights as the passage of time may destroy any opportunity you have to recover.

To safeguard your rights, your lawyers need to build your case expecting to go to trial. This means that we will help you safeguard evidence, document your medical treatment, account for lost wages and employment, and identify and interview witnesses.

If you or a family member have been injured or killed as the result of a confrontation with the police, call us for a free consultation.

 


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Have you noticed how many attorney websites are all about the lawyer and pay no attention to the information that people charged with criminal matters are looking for? Most lawyer websites scream: "Hire me! Do it now! You might go to prison if you don’t act within the next hour! Call me now!"

I hate those websites! Instead of providing information, the lawyers using the sites try to scare you into hiring them based on emotion, not information. The truth is you might not even need an attorney to handle your case. So before you sign that retainer agreement, get informed!

This blog is different. There is a ton of free information here for you to review based on your needs. Have a DUI case? Check out the DUI section of the Topics. Have a question about how to value a personal injury or wrongful death case? Look at the Civil Practice section.

The Topics section can lead you to information that you can use to help you become informed on whatever area of law you are interested in. Well, not every area – this blog is really about criminal defense, civil rights and civil trials. With over thirty years of experience in those areas, my goal is to help you become better informed!

And what if the issue you have is not listed in the Topics? Send me a question and I will get back to you. We promise to get you information – then you can make a great decision about whether you need a lawyer and which lawyer you want to hire.

 


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In the past six weeks, Courtney and I have tried two criminal cases in Ada County.  The first case charged vehicular manslaughter – two felony counts. Last week we tried a case that charged aggravated assault with a deadly weapon and injury to jails (both felonies), as well as misdemeanor counts of false imprisonment, battery and destruction of a communication device (a cell phone). We picked juries in each case, and had the benefit of a jury consultant on the manslaughter case. As we have earlier reported in this blog, the jury in the manslaughter found our client not guilty of the felonies. Last week the jury in the aggravated assault case said not guilty as to the disputed charges (but guilty of the battery in the face of a self-defense claim), but guilty of the two misdemeanors our client had admitted committing.

So what did we learn?

In each case we approached the process of jury selection as one of inclusion, not exclusion. This is a Trial Lawyers College ("TLC") thing. Getting rid of folks from the panel is always tricky, even with a jury consultant, because lawyers are usually looking to "craft" a panel of jurors who are more likely to go their way than the way of their opponent. The problem with that approach is that we are not as "crafty" as we believe. So the TLC approach is different – start instead with your biggest fear in the case and work your way through this with the potential jurors. So we start by admitting we have potential problem areas in the case, and ask the jurors if they are going to be able to remain open to the balance of the case even knowing about the problems. We try to include folks by talking about the warts, and then getting the juror to open up about his or her feelings. Sounds all "touchy-feely" doesn’t it? I think it works.  

Let’s consider the problem posed by a recent client’s admissions that he had hit his girlfriend. Guy hitting girl equals problem. Growing up as men in society, we hear repeatedly a universal truths: "men don’t hit girls." Period. Ever. So when we have a client who has done that – struck a woman – you need to talk about it early and often with potential jurors because it goes against this deep seated belief we have as men. We talk it out and see if the jurors can get past it and get to the issue that they must decide.

Of course all this talk about inclusion is in some ways just talk. At the end of the day the lawyer has to decide which jurors represent the biggest obstacle to a fair trial based on their answers and their experience.  With thousands of dollars paid to jury consultants, I have never forgotten the words of the Hat – "experience trumps everything else." He is right about that. Any juror who has had an experience with domestic violence cannot help but have a predisposition one way or the other in a domestic violence case. If you can get them talking they will tell you whether they can serve fairly. 

But back to the question – what did we learn?

First, we learned that the TLC process works to identify the potential trouble spots with jurors. Spence says that if you are willing to show the jurors your weakness (area of concern) they will talk about their own fears. I think that is exactly what happened in both cases. In the manslaughter case I talked about my fear that people might immediately conclude a person with poor vision has no place driving on the road. The jurors opened up about that weakness and talked through their perceptions. From that we made some inroads into building a relationship with the jurors. They understood that they could look to us for the answers in the case, and they could trust us to be honest about the evidence.

The second thing we learned was that having the jury consultant is a huge help but you can get past the benefit of that expertise by taking more preparation time for voir dire.  Given my choices, I would always enlist the aid of a consultant, but even the best consultant cannot pick your jury. The lawyer is ultimately going to have to make the tough call about who should stay and who should go. The consultant I use always asks me what ONE question I would ask if I could only ask one. From that one question we need to be able to expose our concern to the jury and get them talking about how they feel.

Getting ready for trial? Worried about picking that jury? Get a copy of Gerry Spence’s book "Win Your Case" and read the chapter on jury selection. That is a great starting point for the TLC method that consistently works for us.

 


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