Saturday, August 09, 2008

legal blog watch: All Shook Up Over Bar Exam

All Shook Up Over Bar Exam

Aftershocks continue a week after a magnitude 5.4 earthquake disrupted the California bar exam in Los Angeles. While hardly seismic, a rattle of protests are emerging from test takers who say they were not given a fair shake. At issue, as Amanda Bronstad writes at the blog Legal Pad L.A., is whether extra time to finish the exam was given to some but not others. Test takers seated in one part of the Ontario Convention Center in downtown L.A. were told they would get an extra five minutes to finish the exam, while those seated in a different part were not.

"If we lost anywhere from two to five minutes, that's potentially five to 10 points you could get on the test," said Steve Mitchell, one of the people not given the announcement. "If I were a person who did not pass, and it was by five points, and I was in a room that got a five-minute disruption from the earthquake, I would definitely protest it. I would definitely make it an issue."

But did anyone actually get the extra time? That remains unclear. Another test taker, Cori Jones, told Bronstad: "The proctor did announce in our room that we would get an extra five minutes to finish the exam. However, promptly at the three hour mark he called time. I asked the two gentlemen sitting next to me if we had gotten any extra time by their watches and they said no." A state bar official said she had received no complaints, but added that the bar is well aware of the disruption from the earthquake "and we'll take that into account when we do an evaluation of the exam."

At least the test takers have something besides nerves to blame for their shaky handwriting.

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Posted by Robert J. Ambrogi on August 8, 2008 at 02:25 PM | Permalink | Comments (0)

Go for That Settlement, Study Says

"Better the devil you know than the devil you don't." That old saw has long summed up my attitude about litigation. Part of my practice is as a mediator, and I strongly believe that a settlement is almost always better than litigation. Why? Because a settlement is a product of mutual agreement. Both sides walk away from the table having made a bargain they both agree they can live with. By contrast, litigation is a crap shoot. Let someone else decide your fate, and more often than not you'll be unhappy with the outcome -- even if you "prevail."

A new study backs me up on this -- but only part way. As reported in yesterday's New York Times, the soon-to-be-released study of civil lawsuits found that most plaintiffs who pass up settlement and go to trial end up with less than if they'd settled. "The lesson for plaintiffs is," said Randall L. Kiser, a co-author of the study and principal analyst at litigation consulting firm DecisionSet, "in the vast majority of cases, they are perceiving the defendant's offer to be half a loaf when in fact it is an entire loaf or more."

Plaintiffs who opted for trial over settlement were wrong 61 percent of the time, the study found. But defendants made the wrong decision about going to trial far less often, in just 24 percent of cases. "In just 15 percent of cases," the NYT reports, "both sides were right to go to trial -- meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered." The study will be published in the September issue of the Journal of Empirical Legal Studies.

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Posted by Robert J. Ambrogi on August 8, 2008 at 02:24 PM | Permalink | Comments (0)

Is the Hamdan Sentence a Sham?

Yesterday's decision by a panel of military officers at Guantanamo Bay to sentence Salim Ahmed Hamdan to five and a half years in prison came as a surprise to many. Given that the military judge presiding over the trial, Navy Capt. Keith J. Allred, had already decided to credit the former driver for Osama bin Laden for the 61 months he has already been held, the sentence means he could finish serving his time in just five months -- a far cry from the 30-year sentence sought by prosecutors. "Mr. Hamdan," Judge Allred spoke to him as he left the courtroom yesterday, "I hope the day comes that you are able to return to your wife and daughters and your country."

But will it? In the answer to that question lies the truth about this sentencing. The United States has designated Hamdan as an "enemy combatant." As long as he remains such, the United States may be unwilling to release him, even after his sentence runs out. As The New York Times reports, even the judge and the prosecutors were unsure yesterday whether Hamdan would be released after completing his sentence. "It was all for show if Mr. Hamdan does not go home in December," said his lawyer, Charles D. Swift. Defense lawyers said they believed Hamdan would be released, because to hold him would cause international outrage, NPR reports. But a Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, told Associated Press that he could not speculate on whether Hamdan would be freed. "I can reassure you that the Defense Department is hard at work on this issue," he said.

And then there are the appeals. Hamdan's guilty verdict is automatically appealed to a special military court in Washington, according to AP. A lawyer I spoke to with knowledge of military law said the appeals process could drag on for years. So while it may be true, as the blog Sentencing Law and Policy says, that "the jury sent a strong message to the U.S. government," it remains to be seen what message the government will send in response. Will it thumb its nose at the sentence and continue to hold Hamdan? All we can answer is, stay tuned.

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Posted by Robert J. Ambrogi on August 8, 2008 at 02:23 PM | Permalink | Comments (0)

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