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30 Litig. News 1 (2004-2005)

handle is hein.journals/lignws30 and id is 1 raw text is: UHON OF LmGATIoN American Bar Association 21 North Clark Street aicago, Illinois 60610 IMefending Liberty Pursuing Justice Stacks Received on: 11-05-04 Litigation news. LITI GATON NEWS INSIDE Be Careful What You Wish For - A new decision casts doubt on sentencing guidelines. Page 1 Old-Age Benefit - Preferential treatment for seniors is not discrimination. Page 2 Need More Time? Be Brief! * Supreme Court criticizes filing motions instead of briefs to request extension. Page 3 Just Between You and Me... - Confidential settlement agreements may not be. Page 4 Joint Defense Agreements - Are they a boon, a bane, or a bit of both? Page 5 Computer Evidence Weighed - Six-point test clarifies admissibility of e-evidence. Page 7 Show Me Yours * ABA adopts disclosure rule for malpractice insurance. Page 8 LEGAL PUBLISHING SPONSOR OF THE ABA SECTION OF LITIGATION LexisNexis Criminal Law Supreme Court Invalidates State Sentencing Guidelines That Allow Upward Adjustments Viability offederal sentencing guidelines in doubt By HENRY R. CHALMERS LITIGATION NEWS ASSOCIATE EDITOR T he federal sentencing guidelines' days may be numbered. A recent decision by the U.S. Supreme Court holds that juries, and not judges, must determine any facts that are used to increase a criminal defendant's sentence. Blakely v. Wash- ington. Thus, for example, if a jury does not specifically determine that a defen- dant played a leading role in the offense for which he was charged, the court may not consider any alleged leading role in elevating the defendant's sentence. The Supreme Court was careful to say the decision applied only to the state sentencing guidelines before it, and not to the federal sentencing guidelines. A number of circuits, however, have since found the decision to apply to the federal guidelines, and the Supreme Court is set to hear arguments in two cases squarely addressing Blakely's impact on the federal guidelines. Until the Court rules, sentencing standards at both the state and federal levels are thoroughly in disarray, says Laura A. Miller, Washington, DC, for- mer Co-Chair of the Section's Criminal Litigation Committee. Jerome Roth, San Francisco, Circuit Chair for the Ninth Circuit for the Sec- tion's Criminal Litigation Committee, agrees. Blakely is a bomb blast for both prosecutors and defense counsel. In Blakely, the defendant pleaded guilty to second-degree kidnapping involving domestic violence and use of a firearm-a class B felony in the state of Washington. Washington state law caps sentences for class B felonies at ten years, but Washington's Sentencing Reform Act (Act) establishes a stan- dard range of sentences for this partic- ular crime at 49 to 53 months. The Act allows judges to impose sentences above the standard range if they find substantial and compelling Anniversary LITIGATION NEWS Hits the Big 3-0! Publication begins 30th year of service to Section members By MARY S. DIEMER LITIGATION NEWS ASSOCIATE EDITOR W hen the newly formed Section of Liti- gation first published LITIGATION NEWS in 1975, America was emerging from Water- gate, streaking was the latest fad, and Hank Aaron surpassed Babe Ruth's major league baseball homerun record. With this current issue, LITIGATION NEWS begins its 30th year of publication, ever com- mitted to its initial mandate: to report on newsworthy events of interest to litigators across the country, in- cluding the work of tht Section of Litigation. Originally a quarterl3 publication, LITIGATIOt NEWS at first functionec as a member newsletter. promoting Section mee ings and committees. Now, with a much expanded and outer- directed scope, LITIGA TION NEWS is publishe six times each year. With each new issue, the publication has strengthened and reasons justifying an exceptional sentence. The Act then lists various aggravating factors that justify such a departure. These aggravating factors, however, must be distinct from the factors that are used in computing the standard range sentence for the offense. Thus, aggravating factors generally would involve facts not sub- mitted to the jury for determination. At the defendant's sentencing hear- ing, the trial court found that the defendant acted with deliberate cru- elty, and rejected the state's recom- mended sentence. Instead, the judge imposed an exceptional sentence of 90 months-37 months beyond (Turn to page 6-Sentencing) broadened its coverage of current legal trends and issues-reporting on changes to the Federal Rules of Civil Procedure, the use of technology in complex litigation, lawyer advertising, and cross- border legal issues. Many of the legal trends reported by LITIGATION NEws-such as the y advent of alternative N dispute resolution, the d growing role of women within the legal profes- t- sion, legal ethics, class action reforms, insider trading and corporate finance scandals, prod- uct liability, electronic d discovery, and the decreasing number of jury trials-continue to evolve within our (Turn to page 5-Anniversary)

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