The BLT: The Blog of Legal Times

Report Criticizes Influence of Plaintiffs' Lawyers

Opponents of the plaintiffs' bar stepped up their rhetoric today with the release of a report trying to detail the lawyers' influence in Washington.

The report is part of a series called Trial Lawyers Inc., produced by the New York-based conservative non-profit the Manhattan Institute. It comes out at the same time as the plaintiffs’ bar is lobbying Congress to open up new avenues for litigation against medical device manufacturers and other industries.

James Copland, who directs legal policy at the Manhattan Institute, said it put out the report to argue that the plaintiffs’ bar is self-interested, not always acting in the best interests of consumers. “It engages in sophisticated marketing and lobbying activities to protect their profits,” Copland said in a conference call with reporters today.

The report aggregates campaign contribution numbers and other data — though one graph shows contributions from a trial lawyer PAC declining since 2002. Click here (PDF) for the 32-page report, or here for a Web version.

Asked for a response to the report, a spokesman for the American Association for Justice, which lobbies for the plaintiffs’ bar, called it “recycled lies and attacks.” “Coming off an era when corporations — from Enron and AIG — were allowed to trump the interests of everyday Americans, this report is clearly tone-deaf for the times,” said the spokesman, Ray De Lorenzi, in a statement.

ABA Endorses New Procedure for Judicial Pay Hikes

The American Bar Association's House of Delegates today voted to ask Congress to make it easier for federal judges to receive cost-of-living pay increases when other federal employees get them. Passage of the change would remove a continuing source of friction between judges and Congress. The ABA governing body met at the association's midyear meeting in Orlando, Fla.

Under a law passed in 1981, federal judges can only receive COLAs when Congress specifically approves them; they can't be lumped together with other federal workers. Efforts to repeal the provision have been tried but failed. Last November, Sen. Dianne Feinstein (D-Cal.) introduced a bill that would remove the rule and make the COLA automatic when other general schedule federal workers receive them. The ABA's resolution also suggests Congress pass a similar measure regarding congressional salaries.

Lorna Schofield, chair of the ABA's litigation section, which sponsored the resolution, said in a supporting statement that the change "would ensure that federal judicial and congressional salaries do not keep losing more and more ground relative to the pay levels of white collar federal employees." Further slippage in pay will cause current judges to leave the bench, she said, and will "negatively affect" the ability of the federal judiciary to attract top lawyers.

Veteran Military Judge To Head Fort Hood Hearing

The Army has picked veteran military judge Col. James Pohl to head the pre-trial investigation-- Article 32 hearing-- into whether sufficient evidence exists to proceed with the court-martial of Maj. Nidal Hasan, the alleged shooter in the Fort Hood massacre.

A preliminary date of March 1 has been set for the hearing in which Hasan has been charged with 13 counts of premeditated murder.

“Pohl is a very experienced judge advocate, probably one of the most senior judge advocates of anybody in the JAG Corps and with a lot of experience as a judge,” said former Army JAG Victor Hansen of New England School of Law. “I’ve never tried cases before him but those who have—both defense and prosecution--said he is independent-minded, fair, tough and expects a high degree of preparation from both sides.”

As the hearing officer, Pohl is precluded from being the judge in the expected court-martial of Hasan, he said.

There is no requirement that military judges or JAGs serve as the Article 32 officer. “The exception is when there is a very serious or high profile case,” explained Hansen

Pohl, a 1978 graduate of Pepperdine University School of Law, is no stranger to high-profile cases. He served as judge in several of the Abu Ghraib torture and prisoner abuse cases and drew considerable attention in 2004 when he barred demolition of the Iraq prison because he had ruled it was a crime scene.

He became chief presiding officer for military commissions in December 2008 and attracted more headlines shortly afterwards when he denied the Obama Administration’s request to suspend legal proceedings at Guantanamo Bay in order to give the administration time to review the detainees’ cases. At the time of that ruling, Pohl explained he was bound by the Military Commissions Act of 2006.

An Article 32 hearing is somewhat akin to a probable cause hearing in the civilian criminal justice system, but is really much more than that, according to former JAG lawyers.

“It is really a great tool for defense counsel,” said former Marine Corps Deputy Staff Advocate Charles Gittins of the Law Office of Charles Gittins in Middletown, Va., in an interview last year with The National Law Journal. “Defense counsel can cross examine witnesses, put on evidence, try to mitigate the nature of the offense, or get the case not referred as a capital case. It’s not ex parte like a grand jury, and it’s open to the public.”

At the end of the Article 32 hearing, Pohl can make a “whole host of recommendations” to the Fort Hood “convening authority,” said Hansen, including the appropriate charges against Hasan, appropriate disposition of the case and whether it should proceed as a capital case.

Pohl’s appointment, he added,  “telegraphs that the Army doesn’t want anything screwed up. Because he is an experienced guy, you’ll get a clean hearing, a fully-developed record and whatever recommendations he makes will be thorough.”

Administrative Law Judge Sues HUD for Discrimination and Retaliation

An administrative law judge has filed suit against the Department of Housing and Urban Development, claiming a superior interfered with his docket and refused to let him hear certain cases after the judge lodged a discrimination claim.

The allegations are contained in a complaint filed Feb. 2 at the U.S. District Court for the District of Columbia by Alexander Fernandez, an administrative law judge in HUD’s Office of Hearings and Appeals. Fernandez, who suffers from several health problems including fibromyalgia, a chronic pain disorder, began working at the department in Sept. 2008. He filed an Equal Opportunity Office complaint that November, after HUD allegedly failed to provide him with a disabled parking space that was reasonably near to his office in downtown Washington.

After filing the EEO complaint, Fernandez alleges that he became the target of retaliation from his office’s director, David Anderson, and Marcela Belt, then HUD’s chief executive officer. Among other actions, Anderson allegedly issued docket entries and contacted parties in Fernandez’s cases, even though he lacked the authority to do so. Anderson also told Fernandez he had refused to assign the judge certain high-stakes cases because he was not “sufficiently sophisticated.”

Belt, meanwhile, allegedly told a Hispanic employee not to go “behind closed doors to talk in Spanish to Judge Fernandez.”

According to his suit, HUD attempted twice in May 2009 to move Fernandez to another building without informing him or providing an official explanation. He was put on involuntary administrative leave between Oct. 30, 2009 and Dec. 14, 2009. His lawyer, White & Case partner Francis Vasquez, said HUD gave no justification, save months old complaints about insubordination.

“One of the biggest problems we have had with this is the complete lack of due process,” Vasquez said.

Fernandez’s several claims include national origins discrimination and interference with judicial independence in violation of the Federal Administrative Procedure Act. He is seeking $300,000 in damages, and is asking the court to force HUD to change his supervisors.

Neither HUD nor Anderson immediately returned requests for comment.

DOJ Continues Fight for Deloitte Records on Appeal in D.C.

The Justice Department wants to convince a federal appeals court in Washington that the accounting firm Deloitte should be forced to give up tax documents stemming from auditing services provided to Dow Chemical Company.

Judge Richard Leon of the U.S. District Court for the District of Columbia ruled against Justice in June 2009, saying that the requested documents are confidential. The government is seeking the documents amid a civil tax refund case in federal district court in Louisiana that was brought by Dow's majority-owned partnership, the Chemtech Partnership.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit—Chief Judge David Sentelle and Judges Thomas Griffith and Janice Rogers Brown make up the panel—is scheduled to hear oral argument Feb. 26.

Justice attorneys want to review two categories of documents pursuant to a September 2007 subpoena—three documents that Deloitte (formerly Deloitte & Touche) is withholding based on privilege asserted by Dow, and documents maintained by a Deloitte affiliate in Zurich, Switzerland.

The three documents Justice wants include a 2005 tax opinion from McKnee Nelson (the firm later merged with Bingham McCutchen) and a 1998 memo written by a Dow in-house attorney and an in-house accountant.

More after the jump.

The Morning Wrap

Greatest Deliberative Body: Sen. Richard Shelby (R-Ala.) announced he was lifting his holds on more than 70 pending nominations, having successfully gotten the White House's attention concerning some Alabama projects he'd like to save, the Washington Post reports. In other Senate news, Sen. Ben Nelson (D-Neb.) announced he'd join a filibuster against confirmation of Craig Becker to the NLRB, according to this article at Huffington Post.  And the Wall Street Journal reveals that Sen. Robert Menendez (D-N.J.) urged the Fed to approve a bank merger that helped two big campaign contributors. 

Race and the Supreme Court: Check out the terrific series of postings at SCOTUSblog on the occasion of Black History Month, focusing on race and the Supreme Court. The offerings are described here. Among the contributors so far: Michael Klarman, Heather Gerken, Roger Clegg, Abigail Thernstrom.

Jailhouse Lawyer: In today's New York Times, Adam Liptak tells the story of Shon Hopwood, who became an able jailhouse lawyer while in federal prison for a string of Nebraska bank robberies.  

Rakoff and the BofA: New York federal judge Jed Rakoff is still not happy with a settlement reached between the Securities and Exchange Commission and Bank of America, the New York Law Journal reports here.

Snow Covers Washington Courts

Here are some scenes from around Judiciary Square in downtown Washington today -- in case you are at home and wondering what it looks like.

The Justice Department, at Pennsylvania Avenue N.W. and 10th Street. The sidewalk around Main Justice is clear. Intersections in the area? Watch your step. Slushy and snowy.

H. Carl Moultrie I Courthouse, above. You shouldn't have a problem navigating the sidewalks around the D.C. Superior Court building.

The late Chief Justice John Marshall, with a snow blanket, looks out onto the park that bears his name. The sidewalk and park entrance to the E. Barrett Prettyman U.S. Courthouse is clear.

Snow-covered Metropolitan Police vehicles on C Street N.W. at Third Street. Street parking near the federal district courthouse and D.C. Superior Court is a challenge.

Rep. John Murtha Has Died

Rep. John Murtha (D-Pa.) has died, his office said in a statement released this afternoon.

Murtha, a powerful lawmaker who chaired a subcommittee on defense appropriations and was mired in controversy in recent years over his ties to defunct lobbying firm PMA Group, was 77.

According to his office, Murtha died at 1:18 p.m. at Virginia Hospital Center in Arlington. He had been hospitalized with complications from gall bladder surgery. Murtha just Saturday became the longest-serving member of Congress from Pennsylvania, according to a news release from his office.

Murtha has long defended the earmarks he steered towards his Pennsylvania district, arguing that he was looking out for the best interests of his constituents. Last year, the Office of Congressional Ethics reportedly ended a probe into whether Murtha and other lawmakers traded earmarks for campaign donations.

Meanwhile, PMA Group dissolved as the FBI reportedly investigated whether the firm and its founder Paul Magliocchetti, a former Murtha aide with close ties to the lawmaker, gave millions of dollars in campaign contributions to top members of Congress in exchange for no-bid contracts for clients. Read a March 2009 Legal Times story about PMA Group here.

Georgia Hires Gephardt Group

Gephardt Group Government Affairs has signed a $436,800 annual contract to represent the Government of Georgia.

Former House Majority Leader Dick Gephardt, the firm's president and chief executive officer, will lobby for the former Soviet republic. The firm's team also includes Gephardt's former chief of staff and the firm's managing partner, Tom O'Donnell, and senior vice president Janice O'Connell, a onetime staff member of the Senate Foreign Relations Committee, disclosure documents filed with the Department of Justice show.

U.S. relations with Georgia have been under a microscope since an August 2008 war between Georgia and Russia over the breakaway republic of South Ossetia. Georgia has also stressed its desire to join NATO.

The government of Georgia had been represented by the Glover Park Group since 2008, according to contracts filed with the Department of Justice. The latest contract between Glover Park Group and Georgia expired last month.

Georgetown Law's Lazarus Named to New Professorship

With his longtime friend Chief Justice John Roberts Jr. in the audience, Georgetown University Law Center professor Richard Lazarus was officially installed last week as the new William J. Brennan Jr. professor of law at the school. Lazarus, a member of the Georgetown faculty since 1996, was a founder of the school's Supreme Court Institute and is a leading specialist in environmental law.

The professorship was endowed by an unnamed Georgetown alumnus who was also a friend of the late justice Brennan, according to interim dean Judith Areen, who presided over the installation -- complete with an academic procession and brass band. Brennan's longtime assistant Mary Elmore was also in the audience. The chief justice was accompanied by his wife Jane, a Georgetown Law alumna. Video of the Feb. 3 event can be viewed here.

Lazarus was a Harvard Law School classmate of Roberts and roomed with him in 1980 when they both came to D.C. Lazarus generally does not bandy about his friendship with Roberts, and in his remarks at the installation did not acknowledge the chief justice's presence. But Georgetown colleague J. Peter Byrne, who introduced Lazarus, recalled meeting Lazarus and Roberts at their "spartanly furnished apartment" on Capitol Hill on election night in 1980, when Ronald Reagan won. Byrne said drily, "the dismay I felt" about Reagan's victory that night "was not shared by Richard's roommate." Byrne called Lazarus "the best environmental law professor of his generation."

As part of the ceremony, Lazarus gave a lecture on his twin academic loves: environmental law and the Supreme Court. He reviewed all 16 Supreme Court decisions that have interpreted the National Environmental Policy Act. All of them were  losses for the environmental side, though Lazarus asserted that not all were total losses. His study of the Court's environmental docket led Lazarus to conclude, "what a difference a justice can make," as can good advocacy by lawyers in the cases.

Though the late Wiliam O. Douglas is a hero to environmentalists, Lazarus said he was "surprisingly ineffective" when it came to building coalitions and majorities within the Court's deliberations. By contrast, Lazarus said, the late Wiliam Rehnquist was "hands down" the most effective justice in NEPA cases, going a long way toward explaining all the losses for environmentalists. Likewise, Lazarus said the skillled U.S. solicitors general who have handled the environmental cases on the opposite side of environmental plaintifs were also crucial to the outcomes. They were careful not to bring losing cases and losing arguments to the high court and were able to craft a solid track record as a result.

As the ceremony for Lazarus ended, it was notable that the Georgetown law faculty was allowed to exit first, accompanied by the band's fanfare. The chief justice, who in other settings often gets to leave first, seemed content to wait his turn this time. He was seen in the video tapping his program to the rhythm of the music as the robed professors slowly left the auditorium.

King & Spalding Lands Three Litigation Partners from Orrick

Three litigation partners have signed on to join King & Spalding's Washington and New York offices. The team, which is joining the firm from Orrick, Herrington & Sutcliffe, includes Diana Weiss, James Capra Jr., and James Cusick. Weiss will be based in Washington, and Capra and Cusick will work from King & Spalding's New York office.

Weiss focuses her practice on financial, accounting and securities-related litigation and regulatory proceedings. She has represented accountants, financial services companies and issuers in state and federal courts and in enforcement proceedings before the Securities and Exchange Commission and the Public Company Accounting Oversight Board. She also handles internal investigations stemming from securities, commodities and Foreign Corrupt Practices Act issues.

Capra counsels clients on litigation matters involving accountant liability, antitrust and other general commercial matters. He has represented clients in investigations by the SEC, the Justice Department, Public Company Accounting Oversight Board and the New York attorney general's office.

Cusick represents accounting firms, financial institutions and other businesses in trial and appellate matters.

As The National Law Journal noted in this week's issue, litigation partners who focus on government enforcement issues are in high demand on the lateral market in Washington.

Weiss declined to comment on what clients the team will be bringing to King & Spalding. But after noting that the team has represented Big Four accounting firms, including PricewaterhouseCoopers, she said, "We don't expect any significant change to our practice in the short term."

Weiss said that the team opted to join King & Spalding because the firm offers "a great platform where we can continue to grow our practice." She added the opportunity to work alongside former Solicitor General Paul Clement, who leads the firm's appellate practice, was also a plus. "He does a lot of work that we're looking forward to taking advantage of," Weiss said.

Weiss said that the group is in the process of physically moving to King & Spalding, but because of this weekend's blizzard, the move is taking longer than they expected. "The weather has made things a little more difficult," she said. King & Spalding's Washington office is closed today.

No Talking, No Texting, No Tweeting

A committee of the Judicial Conference of the United States has endorsed a set of model jury instructions for district judges to help deter jurors from using cell phones, computers or other electronic technologies during their jury service.

The Committee on Court Administration and Case Management “developed these instructions to address the increasing incidence of juror use of such devices as cellular telephones or computers to conduct research on the Internet or communicate with others about cases,” wrote Judge Julie Robinson, committee chair, in a memo to district judges. “Such use has resulted in mistrials, exclusion of jurors, and imposition of fines.”

Federal and state court judges have been struggling with the issue, and many are now instructing juries to avoid using technology for case research. There is no uniform standard across the country for jurors in state trials, according to the National Center for State Courts.

The suggested federal instructions inform jurors that they may not use those technologies in the courtroom, in deliberations or outside the courthouse to communicate about or research cases on which they are serving.

 “The committee believes that more explicit mention in jury instructions of the various methods and modes of electronic communication and research would help jurors better understand and adhere to the scope of the prohibition against the use of these devices,” explained Robinson.

In case you haven’t seen the federal jury instructions, they follow:

Before Trial:

You, as jurors, must decide this case based solely on the evidence presented here within the four walls of this courtroom. This means that during the trial you must not conduct any independent research about this case, the matters in the case, and the individuals or corporations involved in the case. In other words, you should not consult dictionaries or reference materials, search the internet, websites, blogs, or use any other electronic tools to obtain information about this case or to help you decide the case. Please do not try to find out information from any source outside the confines of this courtroom.

Until you retire to deliberate, you may not discuss this case with anyone, even your fellow jurors. After you retire to deliberate, you may begin discussing the case with your fellow jurors, but you cannot discuss the case with anyone else until you have returned a verdict and the case is at an end. I hope that for all of you this case is interesting and noteworthy. I know that many of you use cell phones, Blackberries, the internet and other tools of technology. You also must not talk to anyone about this case or use these tools to communicate electronically with anyone about the case. This includes your family and friends. You may not communicate with anyone about the case on your cell phone, through e-mail, Blackberry, iPhone, text messaging, or on Twitter, through any blog or website, through any internet chat room, or by way of any other social networking websites, including Facebook, My Space, LinkedIn, and YouTube.

At the Close of the Case:

During your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet service, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Hogan Lovells Names International Management Committee Members

Hogan & Hartson and Lovells have named the lawyers who will serve on the 15-lawyer international management committee when the two firms merge in May.

The committee will be responsible for Hogan Lovells' strategy decisions, including client and business development, financial and other operational affairs, development and implementation of firm policies, practice management and expansion, and regional management and expansion. The committee will also make recommendations to the recently announced board of the firm. (The NLJ listed members of that board here.)

Hogan chairman J. Warren Gorrell Jr. and Lovells managing partner David Harris, who will serve as co-CEOs of the combined firm, will lead the committee. The committee includes five members who will serve as regional managing partners for Washington, London, continental Europe, Asia, and the Middle East. The other 10 members include eight practice heads and Hogan Lovells' joint finance heads.

Hogan Northern Virginia managing partner Emily Yinger will manage Washington, and Hogan's Dennis Tracey III, a commercial litigation partner based in New York, will be managing partner for the Americas. From the Lovells side, Andrew Gamble, Christoph Kuppers and Crispin Rapinet will continue to in their positions as leaders of the London, continental Europe, and the Middle East regions respectively.

Hogan's managing partner for finance Prentiss Feagles, who also serves as co-director of its tax practice, and Lovells' CFO Richard Olver will become the combined firm's finance co-heads.

The other members are Stuart Stein and Andrew Skipper, who will serve as head of Hogan Lovells' corporate practice group; Steve Immelt and Patrick Sherrington:, who will lead the litigation, arbitration and employment practice group; Benton Hammond and David Hudd: who will lead the finance practice group; Andreas von Falck, who will lead the intellectual property practice; and Jeanne Archibald, who will chair Hogan Lovells' government regulatory practice group.

The members of the international management committee will serve a three-year term.

This Week in the National Law Journal

Luring Laterals: We have a comprehensive package on lateral hiring among law firms nationwide, including a roundtable discussion with a legal recruiter and  the chairs of top law firms. And there's an uptick in lateral hiring in big firms in D.C., according to this report from Jeff Jeffrey and Carrie Levine. 

Toyota Woes Attract Class Actions: More than a dozen class action lawsuits have sprung up since news broke of Toyota's accelerator problem broke, Amanda Bronstad reports. But some experts think they'll fizzle in the face of higher hurdles for class actions these days.

Railroad Steams Toward Law Firm: CSX Transportation, the target of numerous asbestos claims, is gathering allies in its battle against a Pittsburgh law firm that filed many of the claims, Marcia Coyle explains in this article.

Morton on ICE: After nine months on the job John Morton, head of Immigration and Customs Enforcement (ICE), tells Jenna Greene the immigrant detention system is "run haphazardly" and need strong federal oversight.

The Morning Wrap

Smile for the Cameras: Republicans who complained that President Obama did not live up to his promise of transparentcy in health care reform may get their wish. Obama has invited Republicans and Democrats to the White House  to hash out possible legislation, and cameras will be there too, Bloomberg reports.  

Super Bowl, the Good, Bad, and Ugly: The game was riveting, start to finish, but the commercials ranged from the stupendously dumb (screaming chickens?) to the downright annoying (Bud Light's screechy voices.) The Washington Post's Tom Shales focuses on  the CBS promo for David Letterman that featured Jay Leno and Oprah Winfrey.

Supreme Court Openings? The Wall Street Journal's Jess Bravin takes an early look at possible nominees if Justices John Paul Stevens and Ruth Bader Ginsburg retire soon. Last week, ABC's Ariane de Vogue reported that the White House is preparing for that possibility.  

Whither the Weather: D.C. is still digging out from the weekend snowcopalypse that even got mail delivery canceled for the first time in 30 years. And  now the weather gurus are spotting another storm headng our way, the Washington Post reports. For those who can do it, and if you have power, working from home is the way to go.

Kevin Ring Retrial Delayed for Additional Month

A federal judge today delayed the retrial of former Jack Abramoff associate Kevin Ring, giving the Supreme Court time to rule on a set of cases that could affect the charges against the one-time lobbyist.

Ring’s legal team from Miller & Chevalier asked for a continuance so the Supreme Court could decide a trio of cases touching on the honest services statute which prosecutors used to indict Ring. After a short hearing this morning, U.S. District Judge Ellen Segal Huvelle agreed to move the new trial date from June 21 to July 26. The Supreme Court’s last non-argument date this term is June 28.

Ring lawyer Andrew Wise declined to comment.

Check out our prior post from when Ring’s lawyers asked for the delay, and Tony Mauro’s story on the honest services cases before the Supreme Court.

Justice Thomas Gives Shout-Out to Florida Lawyer

Supreme Court justices don't often compliment the lawyers who appear before them -- much less lawyers who argued more than 15 years ago. But that's what Justice Clarence Thomas did in his talk Thursday before the University of Florida Levin College of Law, where he was giving the Marshall Criser Distinguished Lecture. As we reported here Thursday it was a wide-ranging conversation with students.

One student asked about oral advocacy before the Court, and how justices can be persuaded. Thomas began his answer with a familiar jab at his fellow justices for asking too many questions. "If my colleagues would let you talk ... assuming that improbability," he said, drawing laughter. But then he turned serious and recalled, "I have been persuaded by a lawyer from Florida." The lawyer was also a CPA and a certified financial planner, he said, and she was disciplined for including that information in her advertising. "She argued her own case," said Thomas. "She was clear, you could see she was honest, she knew the record, and she won her case."

The lawyer Thomas was complimenting is Silvia Ibanez, the petitioner in the 1994 case Ibanez v. Florida Dept. of Business & Professional Regulation Board, one of several commercial speech cases the Court issued in that period. By a 7-2 vote, the Court ruled that the board's action violated her First Amendment rights, and that the CPA and CFP designations were not misleading.

We caught up with Ibanez, who now practices transactional, tax and estate law in Kissimmee. She was pleased to hear about Thomas's comment. Ibanez has not argued before the high court since then, but she said she still gets asked about the case occasionally. She once taught a course in which she used the decision, surprising her students with the news that it was literally her case.

Ibanez recalled being unsure whether she should argue the case herself, remembering the adage about lawyers who represent themselves having fools for clients. She had never argued a case at any appellate level before. But after a moot court in which the mock judges urged her to proceed, she decided to take her once-in-a-lifetime chance and appear before the Court. "Like everything in life, preparation is the key -- hard work and preparation," she said. "I thought, 'no one knows the case better,' so I decided, why not."

One of the strategic decisions she had to make before the argument was how to refer to herself -- first or third person? "I decided to use 'petitioner' instead of 'I.'" It worked.

Ibanez said that to her mind, the case was notable for another reason that she did not think anyone has picked up on: the case was argued by two women -- herself, and Lisa Nelson for the state of Florida -- and both the opinion and the dissent were written by women -- Justices Ruth Bader Ginsburg and Sandra Day O'Connor, respectively. You can listen to the oral argument at the Oyez Project site here.

D.C. Councilmembers Want Mayor to Pick Judges

Earlier this week, the D.C. Council caused a minor commotion when it voted to make the District’s attorney general an elected position. While the mayor couldn't have been too pleased with the development, he may have gotten a bit of cheer from another bit of legal news – a new bill which would let allow him to pick local judges.

The legislation, introduced Tuesday by Councilmembers Phil Mendelson and Jack Evans, would let the mayor select judges for the D.C. Superior Court and the D.C. Court of Appeals with the council’s consent. Currently, judges are nominated by the president, who selects from a slate provided by the District of Columbia Judicial Nomination Commission. The nominee is then confirmed by the U.S. Senate. One recent Superior Court nominee has been stalled for eight months because a Republican senator put a hold on her confirmation vote.

The new bill would bill would leave the JNC in place, while changing who picks some of its members.

Equally important, the legislation would hand the responsibility for funding and administrating the courts back to the District government for the first time since 1997, when the federal government took over the responsibility.

If the bill passes, it will still need approval from Congress and a change in federal law. Moreover, in his fiscal impact statement the District’s chief financial officer said that “funds are not sufficient” over the next few fiscal years to implement the plan, which would cost an estimated $660 million between FY 2010 and FY 2013. It notes that the federal government budgeted $180 million to operate the D.C. courts for FY 2010 alone.

Nonetheless, Mendelson said he thought the bill was “worth having on the table for discussion.” As things stand now, Mendelson said, the District has no oversight over court issues that are important to locals – and Congress can’t be bothered to address them.

“When is the last time Congress had a hearing on juvenile justice in the District of Columbia, or speedy trials?” he said. “The D.C. court system is a stepchild to the courts system in the eyes of the congress.”

Mendelson then corrected himself. “Maybe I should say half-sister.”

The issue of who should pick the District’s judges, and who should fund the courts, has been a point of contention since the Home Rule Charter was passed in 1974, Evans said. He said that in 2001, the council unanimously passed a bill similar to the one introduced last week, but was met with resistance from the local judges.

“You cannot become a state unless you have control over your judiciary,” Evans said. “Why not throw it in the hopper and see what happens.”

DOJ Appeals $300,000 Award in FBI Agent's Retaliation Suit in D.C.

The Justice Department is appealing a jury verdict and $300,000 judgment won by a former FBI supervisor in Saudi Arabia who said the agency retaliated against him for complaining about discrimination.

The FBI agent, Wilfred Rattigan, who now works as an assistant special agent in charge in a field office in Mississippi, won the verdict in July in the U.S. District Court for the District of Columbia. The Justice Department's appeal reached the U.S. Court of Appeals for the D.C. Circuit on Jan. 26.

Lawyers for Rattigan have filed a cross-appeal to challenge trial court orders that limited allegations against the FBI and Justice Department. In May 2007, Judge Ellen Segal Huvelle granted the Justice Department’s motion to dismiss discrimination claims and allegations of a hostile work environment.

From July 2000 to July 2003, Rattigan was the legal attaché in Riyadh. Rattigan was part of the team of agents who transmit FBI investigatory leads to the Saudi state security service and to six other Arab countries.

Rattigan, represented by the New York firm Beldock Levine & Hoffman, filed suit in November 2004 in the U.S. District Court for the District of Columbia. Rattigan, a black male of Jamaican descent who converted to Islam in December 2001, said in the suit that in response to complaints about workplace discrimination, the government retaliated against him by monitoring and investigating him. The FBI investigated Rattigan to determine whether he was a security risk.

Big Law Preps for Coming Blizzard

By Jeff Jeffrey and Andy Jones

It's been called the Snowpocalypse. The blizzard that's expected to hit Washington in the next few hours is already causing some of the District's largest firms to take cover.

Most firms with offices in Washington seem to be following the federal government's lead, that is letting employees out about four hours early. Jason Costa, a spokesman for DLA Piper, said the firm's Washington office is closing at 1 p.m. today because “we take the safety of our employees very seriously.” He added that many people called into work today, saying they would get things done from home rather than brave the weather.

Howrey, which leaves decisions on whether to close up to the firm’s chief operating officer Ralph Allen Jr., usually checks in with the Metropolitan Police Department to see what it expects in terms of road and transit safety. “But today the expectation that it’s going to be bad is so universal, I’m not sure if he even bothered,” said Howrey spokeswoman Christine Till. The firm is closing at noon.

Crowell & Moring, which is closing at 3 p.m., relaxed the firm's dress code today to "make the commute more bearable," said firm spokeswoman Nicole Quigley. Most of the lawyers are wearing jeans. Crowell is also letting employees leave earlier than 3 p.m. if they have concerns about the weather.

Other firms that will be closing early are Dickstein Shapiro; Gibson, Dunn & Crutcher; Patton Boggs; and Arent Fox.

Regardless of whether Big Law is shutting down, Washington itself is moving pretty slowly today. In a news release Thursday, the Washington Metropolitan Area Transit Authority said it will close the above-ground portions of the metro when the snow reaches eight inches. The routes will likely be affected into Sunday.

We've got calls out to other firms and will update as we hear more. Stay tuned.

Republican Gaston Joins Glover Park Group

Brian Gaston, a top staffer to Republican Rep. Roy Blunt, is joining The Glover Park Group, a public affairs firm known for its Democratic ties.

Gaston is the second major Republican hire for the Glover Park Group. Kevin Madden, a former press secretary to former Massachusetts Gov. Mitt Romney's presidential bid, joined the firm in 2008.

Joel Johnson, managing director of the Glover Park Group's government affairs practice, said the firm is "always looking for the most talented people who are interested in the private sector, and Brian represents that in spades."

Johnson said the firm "has made a decision" to go bipartisan, but is carefully choosing who to hire, and how fast to grow. "I think sometimes you can ...talk yourself into going too fast in a period of growth and end up making mistakes and reducing the quality of your work," he said. "We’ve tried to avoid that."

Gaston, who will start work in March, could not immediately be reached for comment. Before working with Blunt, he was the policy director for former House Majority Leader Dick Armey, and is also a former deputy chief of staff and policy director for House Minority Leader John Boehner (R-Ohio).

Cooley Lands Energy Team from Alston & Bird

Cooley Godward Kronish has pulled quite a coup on Alston & Bird. This week, Cooley brought on energy partners Nik Patel and R. Thomas Amis, the latter of whom served as chair of Alston & Bird’s renewable energy group.

In the coming months, Amis said, between 10 and 12 more lawyers will be making the jump from Alston & Bird to Cooley.

At Cooley, Amis will co-chair the firm’s roughly 50-lawyer clean energy and technologies practice. Both Amis and Patel are based in Washington and focus their practices on project development and finance transactions in wind energy, biofuels, biomass electricity generation, waste to energy, carbon mitigation, merchant transmission, energy efficiency, concentrating solar and natural gas.

Amis said he was interested in joining Cooley because it will allow his team, which focuses on renewable energy project development and finance practice, to combine its expertise with the firm’s “existing strengths in the venture capital and technology areas of the energy sector.”

“This was a chance to be part of a game changer,” Amis said. “The clean energy sector is an area with amazing growth potential. Our expertise combined with the firm’s abilities on the technology side of companies makes for a very complementary match.”

Amis said his team does work for a number of renewable energy companies, including Enexco, Iberdrola Renewables, Element Power, Clean Line Energy, and Equilibrium Capital Group.

Dennis Garris, managing partner of Alston & Bird's Washington office, did not immediately return calls for comment.

The Morning Wrap

Snowpocalypse: As the Washington area braces for a major snowstorm, The Washington Post reports that state and local governments are already millions of dollars over what they had budgeted for snow removal this winter.

9/11 First Responders: Settlement negotiations are underway in the nearly 10,000 lawsuits asking for damages for respiratory and other ailments allegedly incurred in the first response and massive cleanup after the Sept. 11 terror attacks, the New York Law Journal reports via Law.com.

Lobbying on Loans: The New York Times reports on the lobbying efforts surrounding a proposed overhaul of the nation's student loan business. Among those lobbying on behalf of private lenders who oppose a White House plan: Jamie Gorelick of Wilmer Cutler Pickering Hale & Dorr.

Graft in China: Keying off the trial of a Chongqing judge with ties to gangsters, The Wall Street Journal reports on corruption in China's judicial system and the threat it poses to public confidence in the rule of law.

Same Accusations, Different Name: Federal prosecutors Thursday revised their indictment against former Gov. Rod Blagojevich (D-Ill.), with an eye toward avoiding problems related to the "honest-services" fraud statute, the Chicago Tribune reports.

Justice Thomas, On the Road Again

One of the side benefits of the Supreme Court's long winter recess is that justices head out of Washington for speaking engagements, and Justice Clarence Thomas in particular gets to prove yet again that he is incapable of giving a dull speech.

In appearances Tuesday at Stetson University College of Law in Gulfport, Fla. and then this morning at the University of Florida Levin College of Law in Gainesville, Thomas fielded questions from students, quoted the likes of Garth Brooks and Clint Eastwood, revealed his movie preferences, and said he had "zero tolerance" for mistakes or tardiness from his law clerks.

At UF this morning, he was even asked if he'd like to ride the circuits as justices did long ago. "I'd love to," he said with a laugh. "I have my RV!" Thomas, who often spends his summers on the road in his RV, said he'd like the idea of riding circuits even better if he could target college towns in the south during football season.

Thomas said he remembers his student days at Yale Law School when legal dignitaries would come to speak but would spend no time with students. He has resolved to go directly to students when he visits, because of the direct exchanges he can have with them. Thomas said he especially enjoys hanging out with law students "at their joints, with dead animals  on the wall, and old tags .. and food I can't eat." Thomas told the UF students, "I will go back to Washington energized" because of the encounters.

That was clear during both appearances, as viewed on college video streams here and here . Though hoarse from a cold, Thomas answered at length and with passion. At Stetson he even touched briefly on the Citizens United campaign finance case that found him in the majority, as noted in this New York Times article. Thomas defended the concept of First Amendment rights for corporations, and said he had stopped going to State of the Union addresses years ago because it has gotten "very uncomfortable" for justices to attend.

But Thomas ranged well beyond that subject, touching on topics including:

Arent Fox Adds Thor Hearne to Political Law Group

Mark "Thor" Hearne II, who served as national election counsel to President George W. Bush’s 2004 reelection campaign, has joined Arent Fox’s Washington office as a partner in the firm’s political law group.

Before joining Arent Fox, Hearne was the managing partner of Lathrop & Gage's St. Louis office and was based in that firm’s St. Louis office. He will maintain an office in St. Louis.

At Arent Fox, Hearne will advise clients on election, political and campaign finance law and on federal litigation matters. Much of Hearne’s practice is before the Court of Federal Claims and the U.S. Court of Appeals for the Federal Circuit, both of which reside in Washington. Hearne has served as election counsel to federal, state and local political leaders and candidates, political parties, and campaigns.

In June, The National Law Journal reported on Hearne’s work as lead attorney in a class action filed by landowners challenging the conversion of property to a biking trail.

Hearne has previously served as an adviser to the Commission on Federal Election Reform, co-chaired by former President Jimmy Carter and former Secretary of State James Baker III.

Hearne was out of the office and could not be reached for comment.

D.C. Appeals Judges Ponder Value of an iPod

Think you know how much your iPod is worth? Seems like a simple enough question, but if you want to prove it in the District of Columbia, you’re going to have to come ready with a lot more than just the purchase price.

Today the D.C. Court of Appeals vacated the conviction of John Foreman, who had allegedly stolen one of the Apple MP3 players back in April 2007, finding that prosecutors failed to show the device was worth at least $250, the minimum amount required for the first degree theft charge on which he was found guilty.

The victim in the case, Marcus Curry, testified that he had received the iPod in 2006 as a Christmas gift from his mother, who told the court that she had bought it for about $250. But in an opinion by Senior Judge Michael Farrell, the court found that the prosecutors failed to offer evidence that iPods retain their market value over time, leaving the jury to speculate whether that was actually the case. (In 2006, a 30 gigabyte iPod 5G retailed for about $249. The opinion doesn’t state whether that was the model Curry owned).

The government, represented on appeal by assistant U.S. attorney Sarah Chasson, argued that the iPod’s value was based partly on the more than 400 songs the victim had loaded onto it. But the court noted that the victim never testified how much he paid for the songs, some of which, he said, were downloaded for free.

“Permitting jurors here to rely on their own experience of what iPod downloads cost would not be a proper drawing of inferences ‘from the facts . . .proven in light of [their] own experience,’” Farrell wrote, “rather, it would substitute for a failure of proof on the point.”

The three judge panel, which included Farrell and Judges Anna Blackburne-Rigbsy and Phyllis Thompson, remanded the case back to the trial court, where it was first heard by Judge Harold Cushenberry, to consider a lesser theft charge. Curry was represented by a team from the D.C. Public Defender Service, including Christine Monta.

For Venable's Karl Racine, Haiti Fundraising was Personal

When a devastating earthquake ravaged Haiti on Jan. 12, Big Law quickly began raising money for the long-suffering country in a big way. But for Venable managing partner Karl Racine, the effort was personal. Racine was born in Haiti and moved to the U.S. in 1965, when he was three years old.

Racine said that within a week of asking firm lawyers and employees to donate to relief efforts, Venable raised $75,000. Venable chipped in an additional $50,000 from the firm’s charitable arm, the Venable Foundation, for a total of $125,000. The money is being donated to Partners In Health and Doctors Without Borders.

“As soon as the news broke regarding the earthquake, my Haitian colleagues at the firm, including myself, were deluged with calls of concern and from people wanting to donate to relief efforts,” Racine said.

Racine said he is one of several lawyers at Venable with family members still living in Haiti. “Miraculously, none of our families died in the earthquake,” Racine said, who visited family members in Haiti during the holidays. “But we lost many friends.”

The Venable Foundation, Racine said, has a history of supporting indigent communities where the firm has offices and clients. The foundation places a particular emphasis on education and food distribution programs, Racine said.

He said he was especially impressed with the amount raised by the firm because a substantial number of the donations came not just from lawyers but from staff members as well.

Of the commitments from other law firms to the relief effort, Racine said, “People opened up in a big way at a time of great need for the people of Haiti. It was overwhelming to see people who are better off financially are willing to show their generosity to fellow human beings when they are in great need.”

D.C. Circuit to Ex-Judge in Pants Suit: Follow the Rules

Former administrative law judge Roy Pearson hit a snag in a federal appeals court in Washington today. Call it an admonishment from the bench or maybe a simple "do over."

A three judge panel of the U.S. Court of Appeals for the D.C. Circuit today dismissed Pearson's opening brief in his dispute with the city and a group of judges, saying that Pearson's court papers failed to comply with the federal rules of appellate procedure regarding the format of briefs.

Pearson, who unsuccessfully sued a dry cleaners for millions of dollars over a pair of lost pants, claims in the federal suit that the city and a group of D.C. Superior Court judges retaliated against him in denying himreappointment as an administrative law judge.

The appeals court panel—Chief Judge David Sentelle and Judges David Tatel and Karen LeCraft Henderson—ordered Pearson to file a revised brief within two weeks. The panel included boilerplate language that failure to comply with the order will result in the dismissal of the appeal.

Lawyers for the District argued in court papers that Pearson cut corners to cram more words into the brief than allowed by circuit rules. Click here for the city’s motion to strike Pearson’s brief.

Pearson said in response to the criticism that he did not intentionally violate the rules. He called it a “good faith” mistake, one that he attributed to the fact he had never before filed a brief in the circuit.

Republicans Say They'll Support DOJ Policy Pick

The nominee for a top policy position at the U.S. Department of Justice shored up some Republican support today, as the Senate Judiciary Committee forwarded his nomination to the full Senate with a bipartisan endorsement.

Duke University law professor Christopher Schroeder was first nominated to head the Office of Legal Policy in May 2009. Republicans have held up his nomination since, despite a voice vote supporting him in the Judiciary Committee in July. They’ve expressed concern about his views on judicial nominees — appointments that the Office of Legal Policy helps vet.

Two key Republicans spoke in favor of Schroeder’s nomination today.

“The nominee is smart and capable,” said Sen. Jeff Sessions (R-Ala.), the committee’s top Republican. Sessions added that Schroeder “is a very strong partisan. He’s got to be careful about that,” but Sessions said he is supporting Schroeder anyway because the policy position “has some political component to it.”

Schroeder was the Democrats’ chief counsel on the Judiciary Committee two decades ago, an experience that Sen. Orrin Hatch (R-Utah) cited in explaining his support for Schroeder. “When people serve on this committee as staff, they should get the benefit of the doubt,” said Hatch, a former chairman of the committee. “I like him personally. He was always courteous to me.”

The committee voted 16-3 in favor of Schroeder’s nomination. Among those opposing him is Sen. Tom Coburn (R-Okla.), who pressed Schroeder last year on whether he supports President Barack Obama’s position that empathy is an important quality in judges. Schroeder wrote in reply (PDF) that empathy is one of several qualities that should play a role in a judge’s consideration of a case.

Three other disputed Obama nominees didn’t fare as well today, winning the Judiciary Committee’s backing on party-line votes of 12-7. They are: Chicago litigator Mary Smith to head the Justice Department’s Tax Division; former Wisconsin Supreme Court justice Louis Butler Jr. for a seat on the U.S. District Court for the Western District of Wisconsin; and U.S. Magistrate Judge Edward Chen for a seat on the U.S. District Court for the Northern District of California. All three were before the committee for the second time, and they face dim prospects in the Senate unless they pick up some GOP support.

A committee vote for Indiana University law professor Dawn Johnsen, nominated to head the Justice Department’s Office of Legal Counsel, was delayed at least a week because the committee ran out of time.

The Morning Wrap

Senate Swing: Sen.-elect Scott Brown (R-Mass.) is expected to be sworn in today, making it more difficult for Senate Democrats to confirm Obama nominees, including Craig Becker for the National Labor Relations Board, The Boston Globe reports.

Wide-Ranging Speech: In a speech in Florida, U.S. Supreme Court Justice Clarence Thomas discussed why he doesn't attend State of the Union addresses and what he says is the possible segregationist origins of some campaign finance laws, The New York Times reports.

Officer Safety: After the murder of six police officers in the state since October, lawmakers in Washington state are pushing legislation to raise the penalties for assaulting officers and increase benefits to officers killed in the line of duty, The Wall Street Journal reports. One bill would allow judges to deny bail to people if doing so is in the interest of public safety.

The LSAT and ADHD: The Texas Lawyer has the story, via Law.com, of Matthew Scott Jones, who is suing to be able to take the LSAT with additional time to accommodate his attention deficit hyperactivity disorder.

Famous Aunts: President Barack Obama's African aunt is going before a U.S. Immigration Court in Boston today to argue she should be allowed to stay in the United States, The Associated Press reports.

Howrey Cuts 29 Associates, 65 Staff

Howrey CEO Robert Ruyak announced today that the Washington-based firm has laid off 29 associates and 65 staff members, The Am Law Daily reports.

The cuts affect individuals in the firm's 10 U.S. offices. This round of layoffs comes less than a year after the firm cut 25 members of its secretarial staff.

Check out The Am Law Daily for more here.