idealawg

Does the medical profession have a problem with respect? How about the legal profession?

Lack of respect for patients and coworkers may be a factor in mistakes made in healthcare settings. Is there a similar problem with respect lacking in the legal system? From "Why Patients Leave Hospitals With a Bad Taste In Their Mouths" (Pacific Standard online):

Disrespect, Lucian Leape believes, is the elephant in the hospital.

According to the adjunct professor of health policy at the Harvard School of Public Health, disrespect is the reason why so many patients leave the E.R. feeling belittled or ignored. It’s why medical workers feel so “demoralized.” And it’s why—despite attempts at change in the last decade—we still see medical errors that cause needless suffering and even cost lives.

...

In a pair of papers published in July in the journal Academic Medicine, Leape and his co-authors outlined six categories of disrespect, ranging from the obvious to the subtle. On one end lies the overtly disruptive behavior: the angry outbursts, swearing, and bullying. More common is humiliating and demeaning treatment (by teachers to medical students, surgeons to nurses, physicians to patients). But there are also behaviors and

"Minding the Court: Enhancing the Decision-Making Process"

"Minding the Court: Enhancing the Decision-Making Process" is a white paper of the American Judges Association.

Extract from Executive Summary:

Scientists carefully study how our brain processes information, though judges rarely consider these studies. But this research has great potential significance to judges, who spend much of their time making decisions of great importance to others. Although the study of how the brain processes information is an evolving one, the information now available can help judges to make better decisions.

Much of the processing for simple tasks—called reflexive processing—occurs in the background, while most of us solve riddles or math problems through reflective processing, which is deliberate and conscious. The reflective system has a limited capacity, so we operate on a principle of least effort, tending to rely on the reflexive system when possible. To do so, we often use what scientists call schemas, in which characteristics of objects, people, or behaviors coalesce into an easily recognizable pattern (like our ability to tell that a red octagon in the distance is a stop sign).

Heuristics are schemas that are based on only part of the information available— letting us make decisions more quickly. But heuristics can be faulty in a variety of ways. And since heuristics (like all schemas) operate in the world of unconscious, reflexive processing, we can easily make errors without recognizing the source of a faulty decision. Anchoring is one of these heuristics: for example, a person is likely to give a higher or lower estimate of damages if a particularly high (or low) figure is introduced early in the process. That number—even if far off the mark—tends to act as an anchor around which later estimates are formed.

Implicit biases, another type of schema, also threaten fair processes and just outcomes. They are based on implicit attitudes or stereotypes that operate below the radar, and judges have been shown susceptible to them as well.

But most behaviors and decisions result from a combination of both reflexive and reflective processes, so there are ways to lessen the effects of faulty heuristics and implicit biases. One step

US District Court Judge John Kane discusses sin, liberty, and the law

Click to listen to a talk given for Judge Kane to Colorado radio station KVNF. The talk is titled "Sin, Liberty, and the Law." He's introduced by Sally Kane, his daughter and the executive director of KVNF.

Be sure to listen to the question-and-answer session, too. Judge Kane says much of interest, including that, in the last 30 years, our nation has lost its moral compass.

Complete text of law review edition devoted to Therapeutic Jurisprudence and Comprehensive Law

Phoenix Law Review dedicated its latest edition to the topic of therapeutic jurisprudence. Click to read it [pdf]. Table of Contents:

FOREWORD

AN UNSHACKLED LAW REVIEW AND ITS GROUND- BREAKING ANNUAL ISSUE ON THERAPEUTIC JURISPRUDENCE AND COMPREHENSIVE LAW . . . . . . . . . . David B. Wexler    671

ARTICLES FROM PRACTITIONERS
USING THERAPEUTIC JURISPRUDENCE TO FRAME THE ROLE OF EMOTION IN HEALTH POLICYMAKING . . . . . Amy T. Campbell 675

MULTISENSORY LAW AND THERAPEUTIC JURISPRUDENCE: HOW FAMILY MEDIATORS CAN BETTER COMMUNICATE WITH THEIR CLIENTS . . . Colette R. Brunschwig    705

BOOK REVIEW: KENNST DU DAS RECHT? EINSACHBUCHFU ̈RKINDERUNDJUGENDLICHE [DO YOU KNOW THE LAW? A SPECIALIZED BOOK FOR CHILDREN AND ADOLESCENTS] . . . . . . Colette R. Brunschwig    747

MAINSTREAMING THERAPEUTIC JURISPRUDENCE INTO THE TRADITIONAL COURTS: SUGGESTIONS FOR JUDGES AND PRACTITIONERS.............. Hon. Michael D. Jones    753

ELEVATING THERAPEUTIC JURISPRUDENCE: STRUCTURAL SUGGESTIONS FOR PROMOTING A THERAPEUTIC JURISPRUDENCE PERSPECTIVE IN THE APPELLATE COURTS ......................... David B. Wexler 777

THERAPEUTIC JURISPRUDENCE ACROSS THE LAW SCHOOL CURRICULUM: 2012............... David B. Wexler 791

OUTSTANDING STUDENT ARTICLE
HAWAIIAN BURIAL RIGHTS: THE REGRETTABLE BURIAL OF A RICH CULTURAL HISTORY BENEATH URBAN DEVELOPMENT . . . . . . . . . . Todd Dickenson 811

Another example of the unreliability of memory: George Zimmerman witnesses

So politicized, so agenda-driven has the Trayvon Martin case become in some circles that I see it as a Rorschach test. Some pundits, reporters, columnists, gossips, are promoting that version of the events which match the view of the world they had before the incident.

Maybe eyewitnesses are now projecting their own preconceived ideas into their "memories" too, and possibly are being influenced by what they have heard in the time following that night. If so, the malleability of their memories are consistent with research on what eyewitnesses recall as time passes.

If you are interested in this process of memory, how it slips and slides, twists and turns, shrinks and grows, excises and bloats, read this article. Excerpt from "Are Eyewitnesses in the Zimmerman Trial Reliable?" (Live Science):

Newly released court documents in the second-degree-murder case against neighborhood watch volunteer George Zimmerman reveal that, in the month following his fatal shooting of Trayvon Martin on Feb. 26, four key witnesses significantly changed their accounts of what they saw and heard that night. The more recent versions of their memories tend to be more damning of Zimmerman than their initial statements.

Which raises the question: How reliable are eyewitnesses?

My answer from following this topic for years: Not very!

Memory is a reconstructive process, says Richard Wise, a forensic psychologist at the University of North Dakota. "When an eyewitness recalls a crime, he or she must reconstruct his or her memory of the crime." This, he says, is an unconscious process. To reconstruct a memory, the eyewitness draws upon several sources of information, only one being his or her actual recollection.

"To fill in gaps in memory, the eyewitness relies upon his or her expectation, attitudes, prejudices, bias, and prior knowledge. Furthermore, information supplied to an eyewitness after a crime (i.e., post-event information) by the police, prosecutor, other eyewitnesses, media, etc., can alter an eyewitness's memory of the crime," Wise said in an email. [How Are Memories Stored in the Brain?]

...

Elizabeth Loftus, a law professor at University of California at Irvine, said of the Zimmerman case, "There was so much media coverage that it could be that the new information that Trayvon Martin had died, that he was unarmed, the new information about the outcry and outrage, had the potential for contaminating and distorting the witnesses' memory."

Although the eyewitnesses' earlier accounts of that fateful night — descriptions that were generally less damning of Zimmerman — might be closer to the truth, they aren't what the jury will hear during the trial.

How juries and other people decide: Law prof collaborates with interdisciplinary group

Click to read "Three-year decision-making collaboration results in 85 publications, and more" (ChronicleOnline):

By Susan Kelley
Three years ago, Valerie Hans, professor of law, applied to participate in a Cornell project that would bring together social scientists working on how people make decisions. Her goal was to better understand how juries make decisions about damage awards -- an area that lacked a theoretical framework. "But it succeeded beyond my wildest dreams," Hans said.

That's just one success story coming out Cornell's Institute for the Social Sciences' 2009-12 theme project "Judgment, Decision Making and Social Behavior." A dozen professors spanning economics, psychology, government, law, policy analysis and management, human development, and business shared office space and met weekly to advance research on decision-making.

Hans and Valerie Reyna, professor of human development and of psychology, for example, applied Reyna's model of general decision-making to how juries decide to award damages. "I've presented it to legal audiences, and there's a lot of interest in it," Hans said. "To have a theoretical model that's enriched by the kinds of new knowledge about economics and psychology that we were able to learn from our colleagues in the group was really fantastic." The pair has also co-written a scholarly article and applied to Cornell for a small grant to test the model, she added.

...

Research by economists and psychologists on how people make decisions is an area that has exploded with scholarly work in recent years, but Cornell is one of the few universities where top-flight economists and psychologists are talking to each other about such research, ... .

Click to read the rest of the article.

How fair are federal sentencing guidelines? US District Judge John Kane offers his thoughts

A very interesting read indeed! From "How Fair Are Federal Sentencing Guidelines? One Skeptical District Judge Weighs in" (Saint Louis News-Daily RFT):

In this week's feature story, "Our Military Doesn't Have a Gambling Problem," we narrate the tumultuous swan dive of decorated Army Sgt. Dreux Perkins, who returned home from a combat tour in Iraq with post traumatic stress disorder and a pathological gambling addiction. ...

Though Perkins is the primary focus of the story, we lead with another, similar case that played out in Canon City, Colorado, involving John Brownfield Jr., a young combat vet who, like Perkins, showed post-deployment symptoms of PTSD and got caught smuggling tobacco into the federal prison where he worked. But instead of sentencing Brownfield to a prison term, as was called for by federal sentencing guidelines, Senior U.S. District Judge John L. Kane gave him five years' probation and ordered that he undergo counseling and an alcohol treatment program. With that decision, not only did Kane buck the sentencing guidelines, he also ignored the deal (recommending a prison sentence of 366 days) that the prosecuting attorney and defense attorney brokered earlier that year.

Judge Kane's 30-page sentencing memo, which can be found here, went above and beyond the more drab, pedestrian court orders associated with sentencing hearings. Heavily researched, rich in context and chock-full of legal citations and footnotes, the memo received significant recognition after Kane filed it in December 2009. The following year Green Bag, a quarterly journal published by George Mason Law School, recognized the memo in its annual list of "Outstanding Legal Writing." ...

In an interview with Daily RFT, Judge Kane opens up about why the Brownfield case was probably the most meaningful of his 35-year career, his qualms with the way the government treats veterans, and why he thinks some of the concepts behind federal sentencing guidelines are "bullshit."

Click to read the rest.

"The Millennial Juror"

Excerpt:

In November 2008, the Lord Chief Justice of Great Britain, Sir Igor Judge, sounded a warning about the generational shift occurring as web-savvy citizens accustomed to getting their information online entered the jury box. Noting the consequences of this shift for the system of trial by jury, the Lord Chief Justice observed, “If a generation is going to arrive in the jury box that is totally unused to sitting and listening but is using technology to gain the information it needs to form a judgment, that changes the whole orality tradition with which we are familiar.”

Indeed, the impact that the so-called “Generation Y” or “Millennial” population is having on society at large makes it more important than ever for lawyers to understand the effect that they are having on how they communicate to jurors. Along with “Generation X” (those born between 1965 and 1981), the members of Gen Y (those born between 1982 and 1995) comprise more than half the adult population of the United States and nearly 60 percent of the nationwide jury pool.

Click to read the rest of "The Millennial Juror" (Texas Bar Journal).

April 13-15 in Phoenix: Lawyers as Peacemakers and Healers

News release:

Phoenix, AZ (April 4, 2012) – Phoenix School of Law (PSL) invites law students, lawyers, judges, mediators and other legal professionals to an exciting conference taking place on April 13-15th centered around an international law movement gaining more notoriety around the world known as Comprehensive/Integrative Law. The comprehensive law movement contains many models and practices. Some practices, such as peacemaking circles, originated among tribal societies. Others are more recent developments. At times, seemingly identical new models have arisen in different geographic areas. Different names developed, some of which are still used in making reference to the movement. Comprehensive law has been or is sometimes called integrative law, renaissance law, transformational law, visionary law, conscious lawyering, holistic law or holistic justice, creative lawyering, and relationship-based lawyering.

The conference begins on Friday evening which is open to the public and continues on Saturday and Sunday with various panels for interested legal professionals. “Phoenix School of Law is very

Denver-area cold case: No murder conviction after almost 40 years

Do you find cold cases intriguing? I do. Below are several of the newspaper articles covering one decades-old murder that remains unresolved. First, the scene is set by an article from the now defunct Rocky Mountain News. From "35-year-old Arapahoe murder case has new twist: 2005 phone call spurred detectives to take new look at beating death":

On a sunny Saturday afternoon in 1973, inside a home in a peaceful Arapahoe County neighborhood, detectives confronted a bloody and confounding scene.

Betty Frye, a 45-year-old wife and mother, lay dead on the garage floor, her head caved in by an attacker who had clubbed her repeatedly with something heavy, perhaps a hatchet or a large wrench.

In other parts of the house, it looked as though a two-bit burglar had been at work. Televisions left next to a door. Clocks yanked from the wall. Dresser drawers pulled out.

But detectives didn't believe a burglar attacked Betty. They didn't believe there had been a break-in, and they didn't believe the story told by Betty's husband of 24 years, Herbert Duane Frye.

They believed Duane bludgeoned his wife, concocted an elaborate alibi, and prepared to collect life insurance money.

They pursued criminal charges quickly, then dropped them abruptly several months later after a private investigator found a witness that sheriff's detectives hadn't known about.

For three decades, the case sat dormant and unsolved.

Click to read the rest of the article. Then click below to read several articles from the Denver Post about more current activities in the case: