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16 Litig. News 1 (1990-1991)

handle is hein.journals/lignws16 and id is 1 raw text is: OCTOBER 1990 VOLUME 16, NUMBER I ITI ATI N A PUBLICATION OF THE SECTION OF LITIGATION AMERICAN BAR ASSOCIATION Mandatory Aspect of Biden Bill Opposed But Section supports concept of case management by Joseph P. Esposito, Associate Editor G oals such as reducing the costs and delay involved in civil litigation do not engender much controversy. But the means to achieve those goals can be quite controversial, as the reaction to the Civil Justice Reform Act has demon- strated. Sen. Joseph Biden (D-DE), who chairs the Senate Judiciary Committee, introduced S. 2027, the Civil Justice Reform Act of 1990, early this year. Based on a study conducted by tile Brookings Institution and the Foundation for Change, the bill required each federal district court to develop and implement a delay reduction plan, and specified some of the features of the plans. The Litiga- tion Section Council voted earlier this year to endorse the legislation, and the bill seemed to be headed for a fast, smooth trip through Congress. However, the ABA Board of Gover- nors voted in April to oppose the bill as then written. Further, representatives of the Federal judiciary expressed opposi- tion to the Biden bill. Following negotia- tions between the Senate Judiciary Coin- Section Al Adviser Monitors lawyer law project by Mary E. Murphy Associate Editor he Section of Litigation has des- ignated its own adviser to the American Law Institute's project drafting the Re- statement of the Law Governing Law- yers. Appointed in 1988 as the Section's advisor, Lawrence J. Fox, Philadelphia, PA, keeps the Section informed of de- velopments in tile drafts of the Restate- ment and, in turn, relays the Section's views on the proposed Restatement to ALl reporters. mittee and tile Judicial Conference of the United States, Sen. Biden introduced S. 2648, the Judicial lprovements Act of 1990. Title I of the bill contained the revised Civil Justice Refonll Act; Title II provided for creation of additional fed- eral judgeships. hi June, tile Council and Committee Chairs of the Litigation Section met and heard a panel discussion oil S. 2648. The Council subsequently approved a resolu- tion that was submitted to the ABA Should Crime Victims Speak at Scntencing? by Bryan J. 1olzberg Associale Editor rimie victims are increasingly being allowed to speak at sentencing hearings, but the Section of Litigation is taking a wait-and-see approach befbre deciding its position on the concept. hi the last few years at least three states-California, Michigan and Minnesota-have given felony victims Tile Restatement's purpose goes well beyond the ABA Model Rules for Pro- fessional Conduct. Tile Model Rules only govern certain aspects of the law regarding lawyers, Fox said, while the Restatement concept is to codify all aspects of the lawyer's relationship. As an example of the dialogue devel- oping between the Section and the re- porters, Fox invited two of the ('our re- porters to a meeting of Section Council members and committee chairs earlier this year. Specific portions of the Re- statement regarding conflicts and confi- dentiality were discussed. (continued oil page 8) Board of Governors. According to Section Chair Paul Bschorr, New York, NY, the Section supports tile concept of case management, but opposes the man- datory nature of the proposed legisla- lion. The Section instead favors the esiablishnient of a National Commission to study how to reduce delay in the federal courts. M. Kristina Pickering, Reno, NV, Chair of lhe Pretrial Discovery and Procedure Committee, explained that the Biden bill is correct insofar as it recognizes the overburdening of the courts. However, the legislation adopts the wrong solution, Pickering said, because day-to-day management (continlled on page 8J tile right to make a statement at sentenc- ing hearings. Few victims have actually appeared al the hearings, according to a study by the California Crime Victim and Witness Advisory Council. How- ever, almost half of all identifiable vic- timis submit a statement for considera- tion at the hearing. suspect prosecutors and defense counsel will both have a difficult time with such statements, said Linda Pence, Co-Chair of the Section's Committee on Complex Crimes. It's impossible to cross-examine the speaker and that statement interjects more emotionalism into the proceeding. Pense said the Section has had no involvement with new laws giving crime victims the right to make state- ments at hearings. Such statements interject humanity into the courtroom, said Richard Cohen, who drafted California's law on victims' rights to speak at the sentenc- ing. Victims now know judges will hear exactly how they feel, Cohen said. But Pence cautioned that much study is needed before the concept could be fairly judged. The public need for or- derly justice and how this affects that, whether justice now becomes less pre- dictable, is a serious question, she said. tL N E WS

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