Bad lawyers’ jokes aside, most of us do not encounter blatantly unethical and/or unprofessional attorneys in the course of our practice and are fortunately left wondering where the basis for these jokes resides.  But then there are reports like the one in the Atlanta Journal Constitution last week.

The U.S. Supreme Court has rejected the federal government’s argument that compliance orders issued by the U.S. Environmental Protection Agency (“EPA”) under the Clean Water Act, 33 U.S.C. §§ 1251 et seq. (the “CWA”), cannot be challenged in court.  In a unanimous opinion issued on March 21, 2012, the Court held that such orders constitute “final agency action” that can be challenged under the Administrative Procedure Act, 5 U.S.C. § 706(2)(a) (the “APA”).  Sackett v. United States Environmental Protection Agency, 566 U.S. ___, No. 10-1062 (Mar. 12, 2012).  In so doing, the Court has weakened one of the favored arrows in the EPA’s enforcement quiver. 

The case arose when Chantell and Mike Sackett bought two-thirds of an acre near Priest Lake, Idaho, intending to build their home there.  The vacant lot is zoned residential and is located in a platted subdivision, with sewer and water hookups.  The lot is separated from the lake by several lots where homes have already been built.  Sackett, slip op. at 3.  The Sacketts applied for and obtained the necessary building permits from the local authorities.  They began preparing the lot to build their home by filling in part of it with dirt and rock.  Id.  Not long after they did so, the EPA hit them with a compliance order. 

As the Court explained, the EPA’s compliance order contained a number of “Findings and Conclusions,” including: that the Sacketts’ property contains “wetlands”; that the property’s wetlands are adjacent to Priest Lake, a “navigable water” under the CWA; and that, by filling in about half an acre of the “wetlands” on their property, the Sacketts had discharged pollutants into waters of the United States in violation of 33 U.S.C. § 1311(a).  Slip op. at 3-4.  The order required the Sacketts to return the property to its prior condition and to seek a wetlands permit – costs that, according to the Sacketts, would add up to tens of thousands of dollars, many times the $23,000 they paid for the property.  Failure to comply with the order could result in fines of up to $75,000 per day – $37,500 for the statutory violation and up to $37,500 for violating the compliance order.  Id. at 2.

The Sacketts tried to challenge the wetlands finding – both before the EPA and in federal court under the APA – but their challenges were rejected.  The district court in Idaho concluded that the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in federal court, and granted the EPA’s motion to dismiss.  Sackett v. EPA, No. 08-CV-185-N-EJL, 2008 WL 3286801 (D. Idaho Aug. 7, 2008).  The Ninth Circuit affirmed.  Sackett v. EPA, 622 F.3d 1139 (9th Cir. 2010).  In other words, under the lower courts’ decisions, the only way in which the Sacketts could obtain judicial review of the compliance order would be to violate the order, wait for the EPA to sue them, and then raise their arguments in the enforcement action brought by the EPA, while potentially accruing up to $75,000 per day in civil penalties.

In his opinion for a unanimous Court, Justice Scalia set out to explain to the reader “what all the fuss is about.”  After describing the Sacketts’ situation and history – what Justice Scalia referred to as the “strong-arming of regulated parties” by government regulators – the Court held that the Sacketts were entitled to seek relief from the courts. 

The Court explained that the APA has a strong presumption in favor of allowing judicial review of final agency actions.  The Court rejected the EPA’s argument that the lack of an express provision allowing judicial review of administrative compliance orders in the CWA precluded such review, explaining:

[I]f the express provision of judicial review in one section of a long and complicated statute were alone enough to overcome the APA’s presumption of reviewability for all agency action, it would not be much of a presumption at all.

Slip op. at 8.

The Court held that the EPA’s compliance order against the Sacketts met all the requirements for APA judicial review.  First, the Court held that the compliance order was a “final agency action” because it imposed serious legal obligations on the Sacketts, including significant potential double penalties.  Even more importantly, the order represented the “‘consummation’ of the agency’s decisionmaking process” – because the terms of the compliance order were not subject to any further review, as the Sacketts discovered when they unsuccessfully sought a hearing before the EPA.  Slip op. at 5-6.  Second, the order clearly determined the Sacketts’ obligations by ordering them to restore their property to its prior condition.  Finally, the CWA does not expressly preclude review by the courts.  The Court therefore reversed the judgment of the Court of Appeals and remanded for further proceedings.  Id. at 10. 

Justice Ginsburg and Justice Alito filed concurring opinions.  In her one-paragraph concurrence, Justice Ginsburg emphasized that the opinion does not address the question of whether the property owners “could challenge not only the EPA’s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order” – a question that is left for another case and another day.

Justice Alito, in contrast, issued a scathing rebuke of the EPA, the CWA, and Congress, stating that “[t]he position taken in this case by the Federal government – a position that the Court now squarely rejects – would have put the property rights of ordinary Americans entirely at the mercy of [EPA] employees.”  Alito, J., concurring op. at 1.  While the Court’s opinion “provides a modest measure of relief” by allowing property owners to challenge the EPA’s jurisdictional determination under the APA, Justice Alito stated that “[r]eal relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.”  Id. at 2.  Specifically, Judge Alito criticized the EPA’s and Congress’s failure to define what is meant by “the waters of the United States,” leaving this crucial jurisdictional determination to be made “on a case-by-case basis by EPA field staff.”  Id. 

The decision does not reach the merits of the Sacketts’ challenges to the compliance order, nor does it address the Sacketts’ due process argument.  Nonetheless, the decision is significant, and the stakes are high.  While the media has consistently portrayed this case as a battle between property owners as David against the EPA’s Goliath, the opinion also represents a victory for all property owners, including businesses and corporations.  Indeed, General Electric Co. had sought similar relief in a case last year, and filed an amicus brief in support of the Sacketts.  Moreover, the Court’s decision could impact not only CWA enforcement authority, but possibly could also impact review of compliance orders issued under other federal environmental statutes which, like the CWA, do not contain express prohibitions to judicial review.  And, for cases arising out of orders issued pursuant to statutes that do contain an express prohibition against judicial review, the Court may yet decide to go beyond the terms of the statute and the APA and address the due process argument it did not reach in the Sacketts’ case.

A growing trend among employers is requesting applicants’ usernames and passwords to gain access to restricted social media in order to investigate applicants during the hiring process.  In response to this trend, Illinois and Maryland have each recently proposed laws that would essentially ban employers from requesting this type of information.  The main arguments for and against the proposed laws are centered around constitutional privacy concerns, however,  employers should consider that restricting their hiring personnel’s access to this type of information is not as harmful as some opponents have argued.

Demonstrative exhibits are an integral part of any trial presentation.  They are the tools that help us educate the jury about products, teach them about complex technical issues and understand the evidence.  They can illustrate salient points that could be difficult to explain concisely and clearly, and can refute claims of our opponents.  If a picture is worth a thousand words, a video or reenactment may be worth millions of words.  The importance of the effective use of demonstrative aids cannot be overstated.

Demonstrative aids can run the gamut from simple drawings made on chalkboards by witnesses during their testimony to a high tech accident reconstruction video presentation.  They may consist of several blowups of significant photographs, or enlargement of pertinent documents.  The technology available today permits a wide range of possibilities, including highlighting text in a document and during testimony, enlarging and pulling out important language from a document and marking the document on the screen to direct the jury’s attention to a specific part of an exhibit.

It may be important to demonstrate how a machine works, or how technology is used.  It may be necessary to depict the biomechanical possibilities in a given accident.  Videos, computer simulations and other technologies can be very effective to bolster your case.  Timelines are a favorite demonstrative aid and with modern technology, the timeline can be “created” during witness testimony before the jury’s eyes. 

There are many creative and effective ways to create engaging demonstrative aids.  The Trial Techniques SLG will take up the topic at the upcoming DRI Products Liability meeting in Las Vegas (April 11-13).  If you have any particular questions about this topic that you would like to be considered for further discussion in Las Vegas, please post.  

The plaintiffs filed suit against their insurer, Auto-Owners, for breach of contract and bad faith, claiming that Auto-Owners was liable for the total loss of their vacation home that was uninhabitable and unsaleable as a result of the accumulation of bat guano between the home’s siding and walls.  The Supreme Court of Wisconsin was asked to resolve the question whether the pollution exclusion in the Auto Owners policy defeated the claim in Joel Hirschhorn and Evelyn F. Hirschhorn v. Auto-Owners Insurance Company, 2012 WI 20 (Wis. 03/06/2012).

Doctors rely on a patient's medical history, origin of pain and symptoms to diagnose a patient's illness and create a plan for treatment.   Home builders rely on measurements, mathematical equations and soil types to identify structural stress points and create design specifications.   Athletic coaches rely on an opponent's game tendencies, player skill sets and team strengths to identify play schemes and create successful game plans.   Similarly, defense attorneys evaluate facts, law and contract terms to identify liability risks and create a strategy for defense.

If you use the Google search engine (and I’m guessing that includes pretty much everyone) you may have noticed a text box appearing on the screen during the past couple weeks, imploring you to read Google’s new privacy disclosures, along with the caveat “this stuff matters.”  That text box stopped appearing on March 1, when Google introduced its new privacy policy.  According to Reuters, at the beginning of the year, Google began reporting that it was simplifying its privacy policy, consolidating 60 guidelines into a single policy that applies to all its services, including YouTube, Gmail and the social network Google+. 

According to the title of a Washington Post article, the “New privacy policy lets Google watch you – everywhere.”  More specifically, the new policy allows Google to track users’ activities by consolidating information it gathers on them across all of the company’s platforms.  Users cannot opt out of the new policy if they want to continue using Google’s services.  A company representative, Alma Whitten, noted that until now, the company has been restricted in their ability to combine YouTube search histories, for example, with other information on a user’s account (email activity).  Although the company claims that it does not sell or trade personally identifiable user information, it now shares usage habits and historical data across all platforms and uses the information to match ads to your online behavior .  Moreover, the fact that Google is gathering so much user specific information on individuals creates the potential for additional privacy implications in the future.  

The National Association of Attorneys General sent a letter to Google signed by 36 members expressing concern about the new policy.  In part, the letter noted:

Consumers have diverse interests and concerns, and may want the information in their Web history to be kept separate from the information they exchange via Gmail. Likewise, consumers may be comfortable with Google knowing their search queries but not with it knowing their whereabouts, yet the new privacy policy appears to give them no choice in the matter, further invading their privacy.

EU Justice Commissioner Viviane Reding stated that data protection agencies in European countries have concluded that Google’s new privacy policy is in breach of European law.  Given the amount of attention the new privacy policy has generated, it appears as though it’s only a matter of time before the company faces its first significant legal challenge to the policy.  Until then, the digital footprint of all internet users will undoubtedly continue to grow.

Chad Godwin

Attorney

Carr Allison

A year ago we published an article in The Whisper titled Please Jurors, Check Your iPhone With The Bailiff (Vol. 7, Issue 2.)  The article discussed the increasingly frequent problem of jurors' use of the Internet to do their own research and the use of social media sites such as Facebook and Twitter to communicate with each other and the world outside of the courtroom regarding the trials in which they serve.  The temptation of a sitting juror to do her own research, or to discuss the case with other jurors or outsiders, has always been there; it is just that the advent of the digital age has made the ability to succumb to temptation so much easier.  Clearly, courts have taken notice of the problem.  Our article last year discussed the nature of the problem and what you, the lawyer, could do to learn of and handle the problem when it occurs.  This article will in turn discuss what courts and legislatures around the country have done, and to suggest what more should be done to combat the problem at its source. 

In the past year, there have been countless stories of jurors tweeting, posting to Facebook, blogging, or doing internet research during an ongoing trial.  In a recent criminal case in California the jury was excused for a Mardsen hearing, which is when a defendant requests a new court-appointed attorney based upon a claim of ineffective assistance of counsel.  During the hearing, which must be held outside the presence of the jurors, several jurors used a cell phone to Google the meaning of the hearing.  The judge found out and was forced to declare a mistrial.  Before releasing the jury, the judge reprimanded the jury and told them the consequences of their actions – that the State would have to pay for a new trial, and that the defendant, who may in fact be innocent, would have to spend the next few weeks in jail awaiting his new trial.  Thus, the judge advised, the State incurred substantial funds and a man lost his liberty, all because the jurors spent less than five minutes on Google during a trial.  Had the jury been better warned, with an explanation of potential risk, the jury may not have committed the misconduct.      

Another example is that of Seth Rogovoy, a Massachusetts juror who was dismissed from a trial in February 2011 for his tweeting during his service.  The tweets included a post which stated:  "I am in contempt of court, de facto if not de jure" and "Sucks that you can't tweet from the jury box. What's the fun in that?"  These tweets show that Mr. Rogovoy both understood that he was not allowed to make the posts and the potential consequence to himself, yet he did so anyway.  After being dismissed by the judge, Mr. Rogovoy stated:  "I never mentioned any of the people: the defendant, the witnesses. I never mentioned the court I was sitting in."  In an interview later given to Bob Gardinier, as reported in the February 9, 2011 Albany Times-Union article Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using "Twitter," Mr. Rogovoy stated that, given the popularity of social media platforms like Twitter, judges will be forced to confront them in the courtroom.   In that respect, Mr. Rogovoy is absolutely correct.

In order to prevent further juror misconduct through the use of social media, legislatures need to make it clear that it will not be tolerated, and courts need to instruct juries specifically on the impropriety of discussing or researching regarding an ongoing trial, why it is improper to discuss or research an ongoing trial, and the consequences to the juror if he or she fails to follow those instructions.  This instruction should be made several times throughout the course of a trial, including when candidates are first called for jury duty, before voir dire, at the beginning of trial, before every recess, and before deliberations.  The court must then monitor the jurors as best it can, and follow through with the threatened punishment.  Most courts are now doing something about the social media, and in fact most of these suggestions are being followed by at least some jurisdictions.  However, no jurisdiction has yet put them all together in a comprehensive effort to combat the social media problem.  Without a strong message that juror misconduct is impermissible, the problem will only get worse.

More than half the state and federal courts now have jury instructions that at least make a passing mention of the internet when advising jurors or prospective jurors on the prohibition of performing outside research or discussing an ongoing case.  This is a good first step, as many of the jurors who have made social media postings in the past have relayed that they did not understand this to be a "discussion" which was prohibited by the rules.  For this reason, it is important that the instructions make more than a mere passing reference.  Rather, the instructions should be as specific as possible, mentioning sites such as Facebook and Twitter (or whatever the prevalent form or social media of the day happens to be).  At least then, the rule itself will be clear to the jurors.

Additionally, the most effective jury instruction not only gives the rule, but also explains the reasons behind the rule.  While lawyers understand that some evidence is inadmissible for one reason or another and will not be known to the jury, many laypersons have a different view.  They see lawyers and judges as keeping information from them that they need to know.  Thus, not only are they curious, but many believe that they must know all the facts in order to be the best juror they can be.  It is also important, as many model instructions now realize, to give the jury the reasons so that they understand that it is important that they follow the rules.  Just as important is to advise the jury of the consequences to the courts and parties if they do not follow the rules, and the likelihood of a mistrial. 

Often these instructions are repeated in one form or another several times throughout the trial.  This, coupled with a recitation of the policy reasons underlying the instruction, will provide the jury with a constant reminder of the prohibition and sound basis for not falling to temptation.  While it may seem repetitive, the ease with which a person in today's world can pull out their cell phone and record a status update which can jeopardize the entire trial necessitates the constant reminder as seen in the examples above.

In San Francisco County, in response to a jury pool of over 600 that was dismissed in 2009 following the realization that they had all researched a high-profile case prior to voir dire, the court takes a more aggressive approach.  Prospective juries are given a questionnaire with a cover sheet that states in part: 

You are ordered not to discuss this case with anyone; do not allow anyone to discuss the case with you. The only information you may tell anyone is that you are in a jury pool for a trial and the time requirements of that trial. You are also ordered not to read, listen to, or watch any news, Internet, or other media accounts of this case, past or present. You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information. (CCP §1209(a)(10))

In addition to the instruction on prohibition, there must be consequences for a juror's willful disobedience of the rules.  There are many individual instances where a judge has held a juror in contempt of court for violating the prohibition on research and discussion, and held hearings.  This may need to be a more frequent and publicized occurrence to stem the growing problem.  California recently passed a new law, AB 141, which went into effect on January 1, 2012, that makes a willful violation of the prohibition on research or use of social media punishable by not only civil contempt, but also makes it a misdemeanor.  See Cal. Civ. Proc. Code § 1209(a)(6); Cal. Penal Code § 166(a)(6).  In addition, the bill amends current law and requires that the jury be specifically instructed, before trial and before recesses, on the prohibition of research or dissemination of information, in all forms including electronic and wireless.  See Cal. Civ. Proc. Code § 611; Cal. Penal Code § 1122.  If anything, the bill does not go far enough.  For instance, it could require offending jurors to pay for the consequences of their action, including the re-trial of the case if necessary.

While several judges in California and in other jurisdictions have taken it upon themselves to hold a juror in contempt for prohibited conduct, including the use of social media or performing internet research, the California Legislature's codification of this violation as not only civil contempt, but also a misdemeanor, is a step in the right direction.  However, while California's new law requires the judge to advise juries regarding the prohibition on internet research and use of social media, it does not require the judge to instruct the jurors on the consequences of their actions if they fail to follow the rules.  This too is important.  While advising the jury of the reasons behind the rule appeals to their sense of civic duty – the carrot – advising the jury of the consequences of failing to adhere to the instruction lets the jury know that there will be real punishment – the stick.  Both the carrot and the stick are necessary in order to have the best chance of strict adherence to the rules.

Finally, not only is it important that there be a law in place for handling a juror's violation and that the jury be advised of that law.  The law must be enforced, possibly by the district attorneys as a misdemeanor rather than the judge as civil contempt.  The instruction could also contain a request that the jurors report to the court if they know or suspect that one of their co-jurors may be violating any of these orders, which would in essence be self-enforcement.

Other courts have experimented with the prohibition of cell phones in the courthouse for everyone, or at least for jurors.  Indiana, for instance, requires the bailiff to collect and store computers, cell phones and other electronic communications devices prior to deliberations.  This rule was implemented after the Indiana Supreme Court considered a case wherein a juror took a cell phone call during deliberations.  There, the Indiana Supreme Court wrote:  "We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice….The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation."  Henri v. Curto, 908 N.E.2d 196, 202-203 (Ind. 2009).  Although helpful for times when the jurors are actually at the courthouse, this solution may not provide much in the way of curbing the practice of Internet research and social media discussions after hours, unless the jury is sequestered for the entire trial.

Our jury trial system is dependent on the jurors who are privy only to the evidence admissible in court, instructed on the law solely by the judge at the conclusion of the evidence and who have not been predisposed to outside opinions or discussions of the case before deliberation with their fellow jurors.  While no solution is perfect, it is clear that courts, legislatures, and lawyers must do more to halt the increasing episodes of juror misconduct. 

Tom D'Amato is a shareholder with Murphey, Pearson, Bradley & Feeney in San Francisco.  

Adam Koss is an associate with Murphey, Pearson, Bradley & Feeney in San Francisco.  

The U.S. Supreme Court in Shute v. Carnival Cruise Lines, 499 U.S. 585 (1991) held the Shutes, who were injured on a Carnival Cruise ship in waters off Mexico, must file suit in Florida pursuant to the forum selection provision printed on the back of their ticket.   The Shutes filed suit in their home state of Washington.  The cruise ship departed from California.  Shute is still one of the most far reaching holdings enforcing adhesion-like forum selection provisions.  The Shutes also had a strong argument that they lacked notice of the forum selection/choice of law provisions.  

Law.com has an interesting blog post about a recent defense tactic in the case of an alleged “mouse in a can of soda,” you can find the article here. Basically, the defendant is taking a scientific stand regarding the presence of a mouse allegedly sealed in a can of soda. Essentially, they are saying that a whole mouse would not be present in a sealed can, because the acid in the drink would have turned it to jelly. The beverage giant  may need to start competing with jelly and jam companies.  The position may be technically viable but it appears be a public relations nightmare. Do you think this is an effective stance? Does it do more harm than good? Let us know your thoughts.

Jobby is an associate in the Oklahoma City firm of Hiltgen & Brewer, P.C.