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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
Received on: 11-05-04
Litigation news.


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
- Are they a boon, a bane,
or a bit of both?
Page 5
Evidence Weighed
- Six-point test clarifies
admissibility of e-evidence.
Page 7
Show Me Yours
* ABA adopts disclosure rule
for malpractice insurance.
Page 8

Criminal Law
Supreme Court Invalidates
State Sentencing Guidelines
That Allow Upward Adjustments
Viability offederal sentencing guidelines in doubt

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

Hits the Big 3-0!
Publication begins 30th year of service
to Section members

W       hen the newly
formed Section of Liti-
gation first published
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
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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