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Flying Under the Radar

By Stephanie Francis Ward, Molly McDonough, Steven Keeva, Margaret Graham Tebo, Jason Krause, Steve Seidenberg

January 8, 2006, 7:48 pm CST

Coming off of a slow holiday diet of year-in-review articles calling attention to the biggest news of 2005, we call on you to take a look forward.

Place your hand on our crystal ball to see how our sources predict what legal news might be making headlines in the months to come. To make our list, we first determined the most underrated, underreported and unappreciated issues affecting lawyers. And then we thought about how these topics are likely to play out in the future.

While the chosen list is far from comprehensive, it identifies developments that may indeed prove worthy of extra attention.

Meth: Public Drug Enemy No. 1

If you live in a small town and run into problems with the law, methamphetamine may be the first cause that authorities suspect. Some rural justice system officials estimate that the drug is a factor in up to 80 percent of their caseloads.

“It fuels domestic violence, child abuse, thefts, burglaries and crimes of violence because the people who use it get so paranoid,” says John Sarcone, the county attorney in Polk County, Iowa. “Most of these people have children, and there are a number of kids who get removed” from home.

Problems caused by meth have surpassed those caused by other popular drugs, such as crack cocaine, says Linda McKin­­ney, the public defender for south central Mis­sou­ri’s 44th district. “I think meth in all of its forms has been much more destructive physically because it’s a harder drug to kick,” she says. In her experiences, first as a prosecutor and then as a public defender, she knows of only 10 instances where the defendants were able to break their addiction.

Prosecutors elsewhere make similar observations. And some say that while adult use is most common among the working class, juvenile use involves children from across the economic spectrum. Boys often try the drug due to peer pressure, while girls see it as a way to lose weight. Presiding Judge John G. Moody of Missouri’s 44th Ju­dicial Circuit reports seeing more juvenile defen­dants, some as young as 10, testing positive for the drug.

Studies back up personal experiences. In a survey of 500 law enforcement agencies, 58 percent of the respondents cited methamphetamine use as their coun­ty’s biggest drug problem. In addition, 87 percent reported an increase in meth-related arrests in the past three years. The survey, published in 2005, was conducted by the National Association of Counties.

According to a 2004 study by the Office of National Drug Control Policy, 11.7 million Americans reported that they had used methamphetamine at least once. In another study by the agency, which focused on juveniles, 6.2 percent of high school seniors surveyed reported that they had tried the drug.

It’s little wonder that meth has the attention of the nation’s top law enforcement official. Last summer, in a speech to the National District Attorneys Associa­tion, Attorney General Alberto Gonzales said the illegal manufacture and use of the stimulant is the country’s biggest drug problem.

While the drug is moving into urban areas, it’s more prevalent in smaller, more rural com­munities, largely because it’s cheap and easy to manufacture. A meth lab inventory might include pseudoephe­drine, which is found in over-the-counter decongestants, and chemicals such as hydrogen per­oxide, lye and red phosphorus.

Some of the ingredients are combined and cooked, creating the danger of explosion. The cooking process generates liquid and solid wastes that can contaminate buildings, soil and groundwater. “Here in Iowa, we call them Beavis and Butt-Head labs,” Sarcone says.

Increased caseloads are straining resources for courts, prosecutors and public defenders. McKinney says the caseload in her district has gone from 50,000 a year to 100,000 a year. Of those cases, she says, about 80 percent involve methamphetamine use.

McKinney’s office represents about 90 percent of the county’s criminal defendants. She fears that some defendants eventually will have to be turned away because of the increasing caseload.

In March, Iowa passed a law that restricts the sale of nonprescription medications containing pseudoephed­rine. One of the mandates is that retailers must keep such med­­ications behind the counter or in a locked case. Sarcone says he’s already seeing fewer shoplifting ar­rests, and he thinks the law also will lead to a reduction in man­­ufacturing cases. It’s one of several states to pass such a law.

“Pseudoephedrine laws, where the stuff is put behind the counter, are very effective,” Sarcone says. He adds that a federal law, requiring all states to monitor sales of the drug, would be the most effective. “Without the ingredients you can’t make it,” he says. “It’s like having the yeast to make the bread rise.”

Drug courts also seem to help, mainly by reducing the number of repeat offenders. These courts focus on intensive programs to help defendants quit meth rather than do jail time.

In Twin Falls, Idaho, the county has operated such a program for three years. Prosecutor Grant P. Loebs says that about 50 percent to 60 percent of those who complete the program are staying clean. Still, he sees usage of the drug in about 90 percent of the county’s presentencing reports.

Defendants who participate in drug courts have to take periodic drug tests and appear frequently before the judge. In Moody’s court, participants are assigned a parole officer and a case manager, as well as a tracker, who handles drug testing.

“We try to get to know them, and they get to know that we are trying to help them,” Moody says. “I try to praise them when they do well and act disappointed when they don’t. It makes a difference.” —Stephanie Francis Ward

California Tries Plain-English Instructions

All eyes are on California as it takes the lead in a movement to simplify its jury instructions. After more than eight years of tinkering, the California Judicial Council unveiled its criminal instructions in mid-2005, two years after it had completely revamped its civil instructions.

Perpetrator replaces principal in the new version, and words such as stipulate and insinuate are nixed. Now those who worked on the revisions are holding their collective breath.

Why the concern? Because, well, lawyers are lawyers. As 40-year veteran appellate lawyer Irving Greines puts it, “You put two lawyers in a room and they will argue forever over what a single word means.”

Lawyers, including Greines, will be poring over the changes to see whether they accurately reflect the meaning of the previous instructions and to find holes. “I’m sure there is going to be a lot of litigation over it,” says Greines, who makes a point of reviewing jury instruc­tions when he is first hired for an appeal.

Still, the Los Angeles attorney is pulling for the new instructions. The plain-English rewrite is long overdue, he says. “I read instructions sometimes and simply scratch my head.”

One of his early cases took issue with an instruction that included the phrase “a proximate cause.” He successfully argued that jurors could easily be confused by the instruction because it sounds like “approximate cause.”

“Thank God they’re getting away from those legalistic terms, because juries don’t get them,” Greines says. “Law­yers don’t even get them.”

That’s the kind of reaction Peter Tiersma likes to hear. Tiersma worked with committees to revamp both the civil and criminal instructions, and he hopes other states will follow California’s lead. The Loyola Law School professor acknowledges some grumbling, but says most of the reaction so far is positive.

Both Tiersma and Thomas Munsterman, director of the Center for Jury Studies at the Na­tional Center for State Courts, agree that the new instructions put judges more at ease. “A lot of judges are embarrassed to give the current instructions. They roll their eyes,” says Munster­man, who serves on the ABA’s Com­­mission on the American Jury. “If a judge feels comfortable, I think we’ve accomplished a lot.”

Munsterman says it will be tough to test precisely how much of an impact the new instructions will have. Yet there is a high expectation that jurors will have a better grasp of their role. And lawyers already are reporting to Tiersma that they can more plainly see what they have to prove in their cases.

Tiersma says it’s “very important for other states to see that a large state like California can pull this off. The sky isn’t going to fall.” —Molly McDonough

Depression Takes a Toll

It may not quite be the disease that dares not speak its name, but in the legal profession it comes pretty close.

Where depression is concerned, there is clearly a tendency for individual lawyers, and the profession as a whole, to let it languish in the shadows rather than acknowledge its prevalence and confront the terrible toll it takes.

In a very real sense, the story of lawyers and depression is the quintessential “under the radar” item. Un­like substance abuse, which often draws attention in the form of odd behavior, grandiosity, fumbling, neglected responsibilities and so on, depression can be hard to detect—and deadly.

Several studies highlight the problem. Out of more than 100 occupations studied by Johns Hopkins University in 1991, lawyers were most likely to experience clinical depression. A survey that same year by the North Carolina Bar Association found that 11 percent of the lawyer respondents had thoughts of committing suicide at least once a month.

In Austin, Texas, last year, a beloved appellate judge took his own life. It seems that Judge Mack Kidd told no one about the suffering that made his life a torment. He appeared to have everything one could want: a great reputation—both when he was a trial lawyer and a judge—a wonderful family and a bevy of accolades.

It didn’t matter. He kept his pain so far under his own radar that apparently no one could have known he needed help.

Lawyers and judges tend to be self-sufficient types who expect too much from themselves. Many become perfectionists.

Psychologist Amiram Elwork has written at length about the psychological issues facing lawyers. “The fact that lawyers experience higher rates of depression than the average suggests that there is something about their work that contributes to the problem,” he says.

Elwork sees occupational stress as the most likely reason for higher rates of depression among lawyers. That, he says, is caused “by the discrepancy between the demands of being a lawyer and the capacity of lawyers to manage such demands.”

Lawyers who think they may have a problem with depression can contact their state lawyer assistance program or call 866-LAW-LAPS toll-free. —Steven Keeva

Arizona Makes Family Courts User-Friendly

Arizona is making a monumental shift in the way family law cases are handled. In January 2006, the state begins using specialized rules of procedure in family court to become more user-friendly for the 80 percent of family litigants who appear without lawyers.

“There was a recognition that the traditional rules used in civil litigation are not good in the family law setting. They are divisive and put too much emphasis on procedure rather than the best interests of the family—the parties and the children,” says Norman Davis, presiding judge of the Maricopa County family court. Among the changes: Courts will accept unverified copies of documents such as school report cards, billing statements for school and medical fees, and similar items. Either party can invoke the full rules at any time, but unless parties object, the looser rules will apply.

Maricopa County, which includes the city of Phoenix and is the state’s largest jurisdiction, was one of the first jurisdictions in the country to establish a self-help center where pro se litigants can get court forms and simple instructions for filling them out. The service was always popular among family law litigants, despite certain misgivings from some members of the bar.

“Sometimes, it becomes a real problem when you’ve got a judge helping a party get the forms right during the course of a hearing,” says Nicole Lasiter, who practices family law in Phoenix. “Some people just don’t know how to do the forms or they actually have cases that are more complicated than they realize.”

Still, Lasiter thinks the codification of simplified procedures—which has long been a de facto practice in family court—is a good idea. “Most of these things are unlikely to be tampered documents. This just keeps the system moving,” she says. “As long as everyone stays aware of the need to make sure due process is served, it’s fine.”

Davis believes the shift to a public service focus is likely to accelerate.

Maricopa County now requires all family law litigants to participate in a res­o­lution- manage­ment conference within 30 days of filing a petition or a motion. There is no waiting until the end of long discovery or answer deadlines before the courts attempt to resolve the case, Davis says.

Next, Maricopa is moving to an online filing system that leads litigants through a series of questions and provides them with printable forms with all the proper information filled in.

For default or uncontested cases, litigants are already allowed to request a “decree on demand.” Litigants simply go online and ask for a hearing date, which could be scheduled as soon as the next business day. When the litigant appears, a judge can review his or her documents and then sign the decree.

Madelynn Herman, knowledge management analyst for the National Center for State Courts, says she is not aware of any other jurisdictions that have simplified family law to the degree that Maricopa County has. But there is a clear trend to make courts more accessible to the public, she says. Most states provide some written materials to help pro se litigants navigate the legal system. And more and more states are staffing help desks with volunteer lawyers.

Davis acknowledges that the loss of the adversarial tradition in divorce cases may harm some litigants. But, he says, the fact remains that most family court litigants in his county already do not hire lawyers.

“It would be wonderful if every litigant had a well-qualified attorney, but that’s just not the case,” Davis says. “What we’re doing here reflects the reality of 2005.” —Margaret Graham Tebo

Wireless Devices Slip Back Into Court

Judges skittish about allowing cameras in their courtrooms have even more to worry about now that most cell phones include cameras and instant messag­ing. Indeed, witnesses scheduled to testify against a noto­rious Detroit gang in late 2004 received extra protec­tion after someone in the gallery had captured images of frightened witnesses and was text messaging testimony to sequestered witnesses outside the courtroom.

Then Chi­cago media reported a bizarre instance in Sep­tember 2005 in which two apparently flirtatious jurors were caught text messaging each other in the midst of a high-profile wrongful arrest trial.

These examples help explain why courts have banned camera phones and personal digital assistants, such as the popular BlackBerry and Treo. But some jurisdictions are beginning to exempt lawyers from the bans.

Connecticut is one of them. For the next year, court administrators there may authorize lawyers to keep a cell phone, a laptop and a PDA. The devices can have camera capability, so long as the lawyers don’t use them to take pictures or broadcast any audio or video. Violating the rules could subject the lawyer to a finding of contempt.

“You have to balance the risk of misuse of these devices by jurors or by lawyers, and we’ve attempted to reach that balance with this rule,” says Connecticut Supreme Court Justice Peter T. Zarella, who chairs the rules committee for the state’s superior courts.

Before the rule took effect in October, Connecticut had a blanket ban on PDAs and the like. But Zarella says the ban wasn’t practical and was making it more difficult for lawyers to work, especially since there are fewer and fewer public pay phones in courthouses.

Wayne County, Mich., prosecutor Kym Worthy says courts in her neck of the woods have come up with something similar, allowing lawyers to have their phones with them but keeping them away from jurors and spectators.

“The paramount thing is the security of our system and the integrity of our system,” Worthy says. “We cannot have, under any circumstances, witnesses that are put in danger by modern technology.”

The National Center for State Courts hasn’t conducted a survey on precisely this point, but the center’s director of technology services says it’s inevitable that courts will be revisiting their bans. That’s partly because court personnel are beginning to use the technology in their day-to-day operations. While court is in session, clerks use PDAs to communicate with the main office or to keep up on clerical work.

That means at some point courts are going to have to make sure that lawyers are able to use them too, says the NCSC’s Scott Fairholm. In a recent NCSC general technology survey of state court systems, 75 percent of respondents reported that they were using PDAs in the operation of their courts. “As people become more familiar with the technology and its value, it becomes more accepted as part of everyday life,” Fairholm says.

For Chicago lawyer Jason L. Peltz, the PDA he carries is essential. He says he’d feel naked in court without his notes, calendar, contacts and the like. In a products-liability case he tried in early 2005 in Miami-Dade County, his trial team “made constant use” of PDAs and e-mail to communicate with the war room. The team could request documents that weren’t on their laptops and alert witnesses to start making their way to court or to loosen their ties because the pace had slowed. Peltz even noticed a consultant sent by a lawyer in another case who was sending “live reports” on his BlackBerry from the gallery.

Peltz knows the technology can be abused. Still, he says, “it would be a shame if jurisdictions allowed those very rare circumstances to outweigh the much more commonplace circumstances of teams trying to, as efficiently as possible, do their jobs.” After all, he says, the technology simply aids the quest for truth. —Molly McDonough

Law Firms Face Cyberthreats

Thanks in large part to California’s public disclosure law, consumers learned in 2005 that some of their most personal electronic records were compromised. Hackers hit credit card companies, credit-tracking companies, banks, online merchants, and even West and LexisNexis. “Celebutante” Paris Hilton fell prey when a teenager broke into her mobile phone and splashed her celebrity pals’ phone numbers on the Web.

So far, law firms seem to be immune. But lawyers shouldn’t count on that for long.

Ready or not, lawyers will have to confront this issue on two fronts. First, law firms will have to protect their confidential client information and at the same time be tech-savvy enough to help their clients avoid such trouble. Second, more lawyers will be considering civil suits against companies that allow breaches.

Courts are divided over whether it is possible to mount a civil action under the Computer Fraud and Abuse Act, the current law regulating computer break-ins.

And as courts sort out the issue, Congress is considering new legislation. The most likely bill to pass is the Per­sonal Data Privacy and Security Act. The law would introduce stiff new penalties and impose security, privacy and notification rules on any business handling personal data.

“This is a very fluid area of law right now,” says Jon Stanley, a lawyer in Cape Elizabeth, Maine, who handles cybercrime cases. “If you talk to me in six months, this could be a very different conversation.”

Legal experts say law firms and their clients cannot afford to take a lax attitude toward security. At least one company, Natick, Mass.-based BJ’s Wholesale Club, was fined by the Federal Trade Commission for not taking “appropriate security measures”in protecting its client data. In that case, the FTC claimed that BJ’s Wholesale Club failed to take basic steps to protect customer data, including using digital protection for customer information, not changing the default user names and passwords on their systems, and holding onto customer records longer than necessary, making it easy for criminals to access customer records.

As part of the settlement, the company must not only address these deficiencies, but must submit to third-party audits of its security systems, which experts say should be part of any business practice. But even if no criminal or civil penalties result from lax security, the loss of business following a breach can be debilitating. Atlanta-based CardSystems has been accused by credit card companies of negligently allowing as many as 40 million credit card accounts to be compromised. Since then, CardSystems has nearly been forced out of existence as business partners have fled.

Law firms have yet to be stung in any high-profile way by these kinds of breaches, but it’s probably only a matter of time. Firms are increasingly putting client data in the hands of others or using unsecured systems like wireless handhelds that are hard to protect.

Lawyers who remain technology Luddites can’t give complete advice to their clients, either. “Lawyers need to be able to tell clients what is reasonable and appropriate [computer] security,” Stanley says. “There’s a disconnect between most legal departments and the IT department. Somebody has to bridge that gap and get the two groups working together.” —Jason Krause

SEC May Ease Small Companies’ Burdens

Ever since the Sarbanes-Oxley Act passed in 2002 in the wake of the Enron accounting scandal, corporations of all sizes have been howling for relief from the statute’s mandates. This year, the Securities and Exchange Com­mis­sion may finally make some substantial changes in how the law is enforced.

The act’s tough accounting standards for corporations cost the average public company $4.3 million per year, according to a survey by Financial Executives Internation­al, an organization of financial officers. Small companies are hit particularly hard, with compliance costs eating up a much higher percentage of their revenue—up to 50 times more than for big companies, some studies say.

Moreover, these expenses don’t reveal the full costs paid by corporate America. “All my clients scream about this; this is very disruptive to their businesses,” says Wash­ington, D.C., securities lawyer David E. Brown Jr.

However, the portents for change are promising. Soon after he became head of the SEC in August, Christopher Cox indicated he would like to ease the act’s burdens on small public companies. An SEC advisory committee is examining how to do that, and it’s scheduled to release its final report in April.

One issue before the advisory committee concerns section 404, a controversial part of the law requiring public companies to audit their internal financial control systems and identify any “material weaknesses.” The SEC has repeatedly postponed application of this section to smaller companies, so they need not comply until July 2007. Now the committee is considering how—and wheth­er—section 404 should be applied to these companies.

Another big issue concerns accounting standards that require auditors to stay independent of accountants. Under the rules, if a small company without in-house accountants needs to obtain some financial or accounting-related advice, it must first hire consultants to provide the advice and then hire accountants to review it. “We’re trying to see if the independence rules are too strictly applied,” says Herbert Wander, a securities lawyer in Chi­cago who co-chairs the SEC advisory committee.

The committee is also examining whether new accounting rules should be phased in for smaller companies. “New accounting rules are so many and so complex, they require a major learning curve,” Wander says. “Why not let larger companies learn them, then put the rules into effect for smaller companies perhaps one year later?”

Regulatory relief also seems likely to come from the Public Company Accounting Oversight Board. David Hirschmann, senior vice president of the U.S. Chamber of Commerce, says there is a push to reopen Auditing Standard No. 2, which implements section 404.

“While section 404 is 168 words, this implementing standard is over 230 pages and frequently uses vague terms like ‘material,’ ‘reasonable’ and ‘substantial,’ ” Hirschmann says. He hopes the board will make the standard shorter and clearer, and provide specific examples of what is reasonable and substantial. “The PCAOB knows this is a problem, so I think there is a decent chance they will start the process of fixing it in 2006,” he says.

As for Congress, don’t expect it to make any big changes to the law during 2006. Legislators are unlikely to trim back the act’s requirements before 2007, observers say. —Steve Seidenberg

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Correction

"Flying Under the Radar," January 2006, page 34, stated that 100,000 cases per year are filed in Missouri's 44th Judicial Circuit. However, this is in fact the number of cases filed annually in all of Missouri. And while 80 percent of the 44th Circuit's 820 cases per year are related to methamphetamine charges, as stated in the article, that percentage does not apply statewide. The Journal regrets the error.