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14 Litig. News 1 (1988-1989)

handle is hein.journals/lignws14 and id is 1 raw text is: OCTOBER 1988 VOLUME 14, NUMBER I

LITI ATI0 N

NEWS

A PUBLICATION OF THE SECTION OF LITIGATION  AMERICAN BAR ASSOCIATION

Death Cases Get Unique Pre-Appeal Review
Appellate courts now reviewing death warrant
cases while still in trial courts

Special Insert:
Resources for
Litigators
More
Selected Unpublished
Papers by Section Members

R4 rompted by an ever-increasing
load of appeals in capital collateral death
warrant cases, several appellate courts
have begun monitoring these cases be-
fore a notice of appeal is ever filed in the
appellate court. The U. S. Courts of
Appeals for the Fifth and Eleventh Cir-
cuits and the Florida Supreme Court are
among the courts implementing these
expedited procedures.
While there are variations among the
courts' procedures, the common thread
is the gathering by the appellate court
clerk of all the papers filed in the lower
courts while the case is still pending and
undecided below. The appeals judges
then study those lower court pleadings
and briefs on the chance that the case
will ultimately make its way to the ap-
pellate court.
Because a death warrant typically has
a time limitation of a week or less, speed
in dealing with the appeal is essential.
When a death warrant is signed, the state
attorney general's office or the office of
the governor signing the warrant will
typically notify the clerks of the state
supreme court and the federal court of
appeals.
In the Eleventh Circuit, for example,
the clerk's office then contacts the attor-
neys for the parties and requests from
them copies of all relevant pleadings.
While a case cannot be assigned to a
panel until a notice of appeal is filed
(which is often on the eve of execution),
the Eleventh Circuit's clerk identifies
the probable panel and makes available
to panel members copies of the plead-
ings assembled to date. The clerk's
office also requests that the clerks of the
lower courts - both state or federal -
provide copies of additional papers and

by Mary E. Murphy, Associate Editor
orders as they are filed and entered, as
the case winds its way through first the
state and then the federal systems.
Miguel J. Cortez, Clerk of the Elev-
enth Circuit, which handles roughly a
quarter of all death cases in the nation,
said that the procedure used by that
court was prompted by several factors,
the primary one being the increase in
death warrant cases in recent years.
You might say that part of it is neces-

- f self-preservation is nature's
highest law, then attorneys everywhere
have the obligation to attend the ABA
Section of Litigation's 1988 Annual Fall
Meeting, October 20-22, in Washington,
DC. Lawyers Under Attack is the
theme of this year's meeting, which will
focus on the myriad ways that lawyers
are being assaulted, both singly and
along with their clients.
Speakers in the meeting's showcase
program, The Lawyer as Advocate,
Counselor, Witness and Defendant, will
examine the attorney's obligations in
these frequently conflicting roles. The
obligation of professional representation
of clients and the corresponding poten-
tial civil or criminal exposure of the
lawyers involved will be emphasized.
The unifying theme of Lawyers
Under Attack will be seen in the
meeting's educational programs. Topics
include fiduciary and disclosure obliga-

sity being the mother of invention,
Cortez said.
Capital punishment in the South has
been fueled by a political climate that
has encouraged death sentences and
resulting death warrants, according to
Bruce Rogow, Professor of Law at Nova
University Law Center, Ft. Lauderdale.
FL. For instance, he said, Governor
Martinez of Florida is averaging nine
(continued on back page)

tions of corporations and their directors;
the criminal liability of civil litigators;
the risks counsel take in instances of
failed financial institutions; and bad
faith litigation, RICO, and Rule I I sanc-
tions.
Featured speakers are Patricia M.
Wald, Chief Judge of the U.S. Court of
Appeals for the District of Columbia
Circuit, and Elliot L. Richardson, former
Attorney General of the United States.
The annual meeting will also feature
a welcoming reception on Wednesday
evening, cocktails on Thursday night,
and a Friday night gala.
The headquarters for the Fall meeting
is the J. W. Marriott Hotel, 1331 Penn-
sylvania Avenue, N.W.
Further registration information may
be obtained from the ABA Section of
Litigation, 750 North Lake Shore Drive,
Chicago, IL 60611, or by calling (312)
988-5647. Ll

Section Holds Meeting this Month
Lawyers Under Attack theme set for
Annual Fall Meeting in Washington, Oct. 20-22
by Joseph W. Ryan, Jr. Associate Editor

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