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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



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-
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


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