23Rd Annual Litigation Institute and Retreat

23rd Annual Litigation Institute and Retreat

Cosponsored by the Litigation Section

Friday, March 4, 2016, 1 p.m.–5:30 p.m. Saturday, March 5, 2016, 8:30 a.m.–12:30 p.m.

Oregon: 7.5 General CLE credits Washington: 8 General CLE credits 23RD ANNUAL LITIGATION INSTITUTE AND RETREAT

INSTITUTE PLANNING COMMITTEE Dennis Rawlinson, Chair, Miller Nash Graham & Dunn LLP, Portland, OR John Bachofner, Jordan Ramis PC, Vancouver, WA Leslie Johnson, Kent & Johnson LLP, Portland, OR Thomas Johnson, Perkins Coie LLP, Portland, OR Renée Rothauge, Markowitz Herbold PC, Portland, OR

OREGON STATE BAR LITIGATION SECTION EXECUTIVE COMMITTEE John R. Bachofner, Chair Renée E. Rothauge, Chair-Elect Yael A. Livny, Past Chair Kim Sugawa-Fujinaga, Treasurer Scott C. Lucas, Secretary Peter L. Barnhisel Eric L. Dahlin Ben Eder Lindsey H. Hughes Jeanne F. Loftis Steven T. Lovett Honorable Josephine H. Mooney Simeon D. Rapoport Jennifer S. Wagner Kate Anne Wilkinson

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935

23rd Annual Litigation Institute and Retreat ii TABLE OF CONTENTS

Schedule ...... v

Faculty ...... vii

1. Creating Star Rainmakers ...... 1–i — David Markowitz, Markowitz Herbold PC, Portland, Oregon

2A. What Makes a Great Trial Lawyer ...... 2A–i — Alexis Forbes, Ph.D., Bonora Rountree, San Francisco, California

2B. What Makes a Great Trial Lawyer ...... 2B–i — Gregory Kafoury, Kafoury & McDougal, Portland, Oregon

3A. Tips from the Bench: Trying Cases in Oregon’s State Courts ...... 3A–i — The Honorable Stephen Bushong, Multnomah County Circuit Court, Portland, Oregon

3B. Appearance Can Be Everything, Especially in a Case Where You’ve Got Nothing . . . 3B–i — The Honorable Timothy Gerking, Jackson County Circuit Court, Medford, Oregon

3C. Best Trial Practices in Oregon State Courts: “Quality of Sausage (and Trial) Depends on Quality Ingredients and Preparation” (Noble Pig)—Presentation Slides 3C–i — The Honorable Mary Mertens James, Marion County Circuit Court, Salem, Oregon

3D. Litigation Practice Tips 3D–i — The Honorable Donald Letourneau, Washington County Circuit Court, Hillsboro, Oregon

4. “Skating on the Evidence” (Techniques Taught by Gravity and Time) ...... 4–i — Dennis Rawlinson, Miller Nash Graham & Dunn LLP, Portland, Oregon

5. Yasui v. United States: From 1941 to Today—Making the Case for the Constitution . . . 5–i — Peggy Nagae, Peggy Nagae Consulting, Portland, Oregon

6. Persuading Diverse Audiences: Making Your Words Work for You 6–i — Dean JoAnne Epps, Beasley School of Law, Temple University, Philadelphia, Pennsylvania

23rd Annual Litigation Institute and Retreat iii 23rd Annual Litigation Institute and Retreat iv SCHEDULE

Friday, March 4, 2016

Noon Registration

1:00 How to Train and Coach Rainmakers Why succeed at rainmaking? The rewards are worth the effort! One of Oregon’s top litigators shares his training tips, such as setting goals, identifying targets, creating the message, and understanding the client’s decision-making process. Examine coaching techniques that include selecting activities, reviewing progress, providing support, and rewarding success. David Markowitz, Markowitz Herbold PC, Portland, OR

2:00 What Makes a Great Trial Lawyer Learn about the studies, practices, and habits (and good luck charms) that have worked for four very experienced and highly successful litigators whose professional background and trial experience covers a wide range, including civil, criminal, juvenile, and arbitrations. Moderator: Alexis Forbes, Bonora Rountree, San Francisco, CA Gregory Kafoury, Kafoury & McDougal, Portland, OR Jeff Pitzer, Pitzer Law, Portland, OR Emily Simon, Attorney at Law, Portland, OR Judy Snyder, Law Offices of Judy Snyder, Portland, OR

3:15 Break

3:30 Tips from the Bench: Trying Cases in Oregon’s State Courts Four state court judges share some of the best practices they have observed for trying cases in state court. Hear what they think lawyers can do to persuade the finder of fact. Moderator: Tim Helfrich, Yturri Rose LLP, Ontario, OR The Honorable Stephen Bushong, Multnomah County Circuit Court, Portland, OR The Honorable Timothy Gerking, Jackson County Circuit Court, Medford, OR The Honorable Mary Mertens James, Marion County Circuit Court, Salem, OR The Honorable Donald Letourneau, Washington County Circuit Court, Hillsboro, OR

4:30 Skating on the Evidence (Trial Techniques Taught by Gravity and Time) Sharpen your persuasion skills by discovering powerful trial techniques that can be practiced and perfected daily. Learn how to ensure that the “decisive moments” in your trial are turned to your advantage. What is the most effective way to conduct jury selection, and how do you keep the jurors from thinking about the next University of Oregon football game, their grocery lists, and where to go on vacation? Dennis Rawlinson, Miller Nash Graham & Dunn LLP, Portland, OR

5:30 Adjourn to No-Host Reception

6:30 Dinner and Presentation of the 19th Annual Owen M. Panner Professionalism Award to the Honorable Michael McShane, U.S. District Court, Eugene, OR

23rd Annual Litigation Institute and Retreat v SCHEDULE (Continued)

Saturday, March 5, 2016 8:00 Late Registration and Continental Breakfast 8:30 Persuasion of the Many Triers of Fact Dean Andrea Lyon, Valparaiso University School of Law, Valparaiso, IN 9:30 Yasui v. United States: From 1941 to Today—Making the Case for the Constitution Learn how the skills of persuasion can make history . . . and change history. Peggy Nagae, Peggy Nagae Consulting, Portland, OR 10:30 Break 10:45 Persuading Diverse Audiences: Making Your Words Work for You Discover the importance of using your audience to guide the framing of your message and how word choice, sequence, and inflection shape the persuasive impact of speech. Dean JoAnne Epps, Beasley School of Law, Temple University, Philadelphia, PA 11:45 Social Justice and Our Justice System Moderator: Steven Wax, Oregon Innocence Project, Portland, OR Dean JoAnne Epps, Beasley School of Law, Temple University, Philadelphia, PA Dean Andrea Lyon, Valparaiso University School of Law, Valparaiso, IN Peggy Nagae, Peggy Nagae Consulting, Portland, OR 12:30 Adjourn

23rd Annual Litigation Institute and Retreat vi FACULTY

The Honorable Stephen Bushong, Multnomah County Circuit Court, Portland, OR. Judge Bushong has been a Circuit Court Judge in Multnomah County since 2008 and was named Chief Civil Judge in 2013. Judge Bushong serves on the Oregon Law Commission and has served on the Oregon State Bar’s Uniform Civil Jury Instruction committee, on the executive committees of the bar’s Litigation and Government Law sections, and as chair of the Multnomah Bar Association Professionalism Committee. He authored chapters in the Oregon State Bar publications on Civil Pleading and Practice (2012) and Oregon Constitutional Law (2013), and he regularly submits articles on “Recent Significant Oregon Cases” featured in the Oregon State Bar Litigation Section Litigation Journal.

Dean JoAnne Epps, Beasley School of Law, Temple University, Philadelphia, PA. Dean Epps has held the Dean position at Temple since 2008 and has taught law for almost 30 years at Temple, where she teaches Litigation Basics to first-year students. Aside from that course, her primary teaching areas include criminal procedure, evidence, and trial advocacy. Outside of the law school, she teaches advocacy skills and promotes the rule of law in a variety of international arenas. She is a member of the Consortium for Women’s Leadership, which is based at the Center for Women in the Law at the University of Texas School of Law, is a member of the Board of the National Association of Women Lawyers Foundation, and is active in both the American Law Institute and Association of American Law Schools. She also is a member and past president of the Defender Association of Philadelphia Board of Directors and president of the Pennsylvania Women’s Forum. Dean Epps was awarded the 2014 Justice Sonia Sotomayor Diversity Award by the Philadelphia Bar Association, and in 2012 Pennsylvania Governor Tom Corbett named Epps a Distinguished Daughter of Pennsylvania for her significant contributions to the Commonwealth.

Alexis Forbes, Bonora Rountree, San Francisco, CA. Dr. Forbes is an Associate Trial Consultant and Research Coordinator who uses her knowledge of legal psychology and psychological research methods to produce jury research. She holds a Ph.D. in Psychology & Law from John Jay College and the Graduate Center at CUNY. Her publications and academic research have focused on the topics of pretrial publicity and juror decision-making, the impact of expert testimony, the impacts of gender and racial biases, and legal outcomes for lesbian, gay, bisexual, and transgender individuals. She has a broad range of case experience, including antitrust, product liability, employment, complex financial interests, and a variety of criminal cases. Dr. Forbes previously was an Adjunct Professor at John Jay teaching Psychology Research Methods.

The Honorable Timothy Gerking, Jackson County Circuit Court, Medford, OR. Judge Gerking has been a Circuit Court Judge since 2011 and became Presiding Judge in 2016. Prior to taking the bench, he was in private practice in the areas of insurance defense and public school law. He is a member of the UTCR Committee and the Council on Court Procedures. Judge Gerking is a past member of the Oregon State Bar Service MCLE Board, State Professional Responsibility Board, and Board of Governors.

Tim Helfrich, Yturri Rose LLP, Ontario, OR. Mr. Helfrich practices civil litigation, including tort litigation (personal injury, professional malpractice, insurance, and product liability) on both the plaintiff and defense sides, eminent domain, real estate, probate, trust and estate, and business litigation. He is a Fellow of the American College of Trial Lawyers and an Advocate and immediate past president of the Oregon chapter of the American Board of Trial Advocates. Mr. Helfrich has been an author and speaker on trials, evidence, and civil litigation. He is admitted to practice in Oregon and Idaho.

23rd Annual Litigation Institute and Retreat vii FACULTY (Continued)

The Honorable Mary Mertens James, Marion County Circuit Court, Salem, OR. Judge James was appointed to the bench in 2003 by Governor Kulongoski and has been elected to two successive terms. She presides over criminal and civil bench and jury trials and pretrial hearings. Her caseload includes complex commercial, construction defect, and civil enforcement cases, constitutional challenges to Oregon laws, family law and probate cases, and criminal cases from misdemeanor to death penalty charges. She is presiding judge for Marion County’s mental health treatment court, which she helped start, and she is also a mediation/settlement judge. Judge James is a member and past chair of the Bench-Bar Commission on Professionalism and past chair of the Oregon State Bar Civil Rights Section, Uniform Civil Jury Instruction Committee, and Judicial Administration Committee. She serves on the statewide Judicial Education and Judicial Conduct committees, teaches Judicial Ethics at the New Judges School, and is a frequent presenter on trial practice, professionalism and ethics in the courtroom, overcoming bias, and treatment courts for the bar, inns of court, and statewide judicial meetings. She teaches trial practice and pretrial civil litigation as an adjunct faculty member at Willamette University College of Law, and the law school honored Judge James in 2013 by creating an award in her name for excellence in mentoring law students.

Gregory Kafoury, Kafoury & McDougal, Portland, OR. Mr. Kafoury is a litigator who focuses his practice on civil rights. He has won verdicts for activists and whistleblowers totaling nearly $11 million. He has also had eight jury verdicts between $1 and $6.2 million, a number matched by only one other attorney in the history of Oregon. Mr. Kafoury received the 1994 Oregon Trial Lawyers Association Public Justice Award “in recognition of continued efforts to create a more just society through creative litigation, and innovative work with the broader public interest community.”

The Honorable Donald Letourneau, Washington County Circuit Court, Hillsboro, OR. Judge Letourneau has been a Circuit Court Judge for Washington County since 1995 and previously served as a District Court Judge for Washington County. Prior to taking the bench, Judge Letourneau worked in the Metropolitan Public Defender’s office in Multnomah and Washington counties.

Dean Andrea Lyon, Valparaiso University School of Law, Valparaiso, IN. Dean Lyon is the first female dean of Valparaiso University Law School, one of the oldest American Bar Association–accredited law schools in the United States. Prior to joining Valparaiso Law, Dean Lyon served as a clinical professor of law, Associate Dean of Clinical Programs, and Director of the Center for Justice in Capital Cases at DePaul University College of Law. Before that, she worked for the Cook County Public Defenders’ Office in the felony trial division, post-conviction/habeas corpus unit, and preliminary hearing/first municipal unit and the appeals division. She also was chief of the Homicide Task Force and has tried over 130 homicide cases, both while in the Public Defender’s Office and afterward. She has defended more than 30 potential capital cases at the trial level and has taken 19 cases through penalty phase—and won all 19 cases. In 1990, she founded the Illinois Capital Resource Center and served as its director until 1995. She is a nationally recognized expert in the field of death penalty defense and a passionate advocate for criminal justice system reform in the United States. Dean Lyon is the author of Angel of Death Row: My Life as a Death Penalty Defense Lawyer, and the just-released The Death Penalty. What’s Keeping It Alive. Dean Lyon has won the National Legal Aid and Defender Association’s Reginald Heber Smith Award for best advocate for the poor in the country.

23rd Annual Litigation Institute and Retreat viii FACULTY (Continued)

David Markowitz, Markowitz Herbold PC, Portland, OR. Mr. Markowitz is a Fellow and former Oregon State Chair of the American College of Trial Lawyers, a Fellow of the International Academy of Trial Lawyers, and a member of the American Board of Trial Advocates. He is also a Master Member and former president of the Owen M. Panner American Inn of Court and a member of the Federal Bar Association, the Multnomah Bar Association, the Oregon Trial Lawyers Association, and the Oregon Association of Defense Counsel. In addition to his litigation practice, he serves as an attorney fee expert and has been retained to testify as an expert witness in more than 100 cases. He is a frequent lecturer on litigation-related topics for state, local, and federal bars across the country and in Canada. He is a prolific author of legal articles, publications, and white papers on litigation topics. Mr. Markowitz is the 2006 recipient of the Oregon State Bar President’s Special Award of Appreciation for devoting significant time and energy to CLE training for Oregon attorneys and the 1994 Oregon State Bar President’s Award for Membership Service. Mr. Markowitz is admitted to practice before the U.S. Supreme Court. Peggy Nagae, Peggy Nagae Consulting, Portland, OR. Ms. Nagae founded her consulting practice in 1991; she focuses on executive coaching, training, and team-building as vehicles to increase productivity and enhance employee morale. Prior to starting her own company, Ms. Nagae practiced law as a trial attorney, served as the Director of Associates for a Seattle-based litigation firm, and held the position of Assistant Dean for Academic Affairs at the University of Oregon School of Law. Ms. Nagae has also taught Alternative Dispute Resolution, Advocacy, and Trial Practice. She holds certificates from the Harvard Institute for Educational Management, the Covey Leadership Center, and CDR Conflict Resolution Systems. Jeff Pitzer, Pitzer Law, Portland, OR. Mr. Pitzer formed his own law firm in January 2002, after nearly 12 years at a large Chicago litigation firm. He practices in the areas of intellectual property, commercial litigation, environmental litigation, antitrust, construction litigation, employment law, and criminal defense. Mr. Pitzer has tried and won cases throughout Oregon in state and federal courts and on appeal for both individuals and businesses. Dennis Rawlinson, Miller Nash Graham & Dunn LLP, Portland, OR. Mr. Rawlinson concentrates his practice on commercial litigation. He has handled many trials and arbitrations on a wide range of commercial subjects, such as breach of contract, commercial torts, construction and design, shareholder disputes, lender liability, real estate, professional negligence, employment, and trademark disputes. He was the 2006 president of the Oregon State Bar, is the founder of the Litigation Institute and Retreat, and is a frequent writer and speaker on litigation topics. Mr. Rawlinson has had considerable experience working with the media and has been interviewed on client-related matters by Diane Sawyer, Connie Chung, and Katie Couric. Emily Simon, Attorney at Law, Portland, OR. Judy Snyder, Law Offices of Judy Snyder, Portland, OR.Ms. Snyder has a diverse civil litigation practice in which she represents people throughout the state of Oregon on claims arising from violations of civil rights, wrongful death, medical and legal negligence, motor vehicle accidents, and catastrophic incidents. She has also represented licensed professionals before their state licensing boards. Ms. Snyder serves on Oregon’s Commission on Judicial Fitness and Disability. She is a member of the American Association for Justice and the American Board of Trial Advocates and a member and past president of both the Oregon Trial Lawyers Association (OTLA) and Multnomah Bar Association. She has been awarded OTLA’s Distinguished Trial Lawyer Award and received the Professionalism Award from both the Oregon State Bar Litigation Section and the Multnomah Bar Association.

23rd Annual Litigation Institute and Retreat ix FACULTY (Continued)

Steven Wax, Oregon Innocence Project, Portland, OR. In 2014, Mr. Wax resigned from his position after serving for 31 years as a U.S. federal public defender to join the Oregon Innocence Project. The Innocence Project is a nonprofit legal organization that is committed to exonerating wrongly convicted people through the use of DNA testing and to reforming the criminal justice system to prevent future injustice. He has also served as an adjunct professor at Lewis and Clark Law School. Mr. Wax is admitted to practice in Oregon and New York and before the United States Supreme Court.

23rd Annual Litigation Institute and Retreat x Chapter 1 Creating Star Rainmakers

David Markowitz Markowitz Herbold PC Portland, Oregon

Contents Creating Star Rainmakers 1–1 Sample Marketing Plan—New Associate (1–2 Years) ...... 1–3 Sample Marketing Plan—Senior Associate ...... 1–7 Sample Marketing Plan—Junior Partner ...... 1–11 Marketing Plan Template ...... 1–13 Chapter 1—Creating Star Rainmakers

23rd Annual Litigation Institute and Retreat 1–ii Chapter 1—Creating Star Rainmakers

CREATING STAR RAINMAKERS

Inspire • Confront the challenges: limited time, delayed rewards, most people are introverted and don't like selling, requires sustained effort • Benefits: o Dramatically increased income o Job security and mobility o Choice of work Teach • Set goals: what do you want? • Identify who has the business you want (targets) • Select activities that a) aren't painful, and b) will allow the messages to be delivered to the targets (fish where the fish are) • Develop the messages that ask for what you want • What motivates the clients' selection: o Best for the case: . relevant experience and results . demonstrated skills and expertise . cost control . reputation o Payback o Affinity

Agree on specific plans. Select activities for: • Next four months • Next 12 months • Long term

Eliminate excuses and roadblocks

Periodic reviews • Compare activities and results to plans and goals • Eliminate activities that are painful or ineffective • Select new activities • Improve the messages and delivery • Provide assistance

Deal with success • Celebrate • Deliver promised rewards • Provide support and training for handling and growing the book of business

23rd Annual Litigation Institute and Retreat 1–1 Chapter 1—Creating Star Rainmakers

23rd Annual Litigation Institute and Retreat 1–2 Chapter 1—Creating Star Rainmakers Threats Weaknesses Early in career, learning practice of law Not knownNot in the legal community Family obligations Workload

• • • • 2016 2016

JANE AVERY th as many as possible shareholders of the firm’s First Year Associate e and communication, exceeding shareholder’s expectations colleagues want to work with Strengths Opportunities Personable communicator Good Enthusiasm for business development inInvolvement legal organizations legal eventsAttending Leveraging undergrad and law school connections Develop commercial litigation techniques by working wi Attend CLEs to improve litigation skills Offer excellent work product and superior client servic Become the “go to” associate firm Reach my billable hours goal for 2016

• • • • • • • • • • • Overall goals: Learn practice of law Get to know peers in the legal community to Begin develop business a development mindset SWOT Analysis My business objectives:

23rd Annual Litigation Institute and Retreat 1–3 Chapter 1—Creating Star Rainmakers

Status Attend Litigation Section Retreat Join MBA YLS Join FBA Join OSB Litigation Section Join OADC or OTLA g organizations and attending their networking events rectly support above business goals): Join legal organizations that are pertinent to my practice area Look for opportunity to do pro bono work to build my litigation skills Join college alumni organizations

• • • Details Law school alumni contacts Attorneys within my firm Associates outside the firm of my tenure

o o o Focus on establishing relationships with other lawyers of my tenure Get involved in Portland’s legal community by joinin Benefit from mentorship and coaching from firm’s shareholders Get actively involved with at least one legal organization Attend as many legal networking events as time allows Take the people I meet to lunch or coffee Other attorneys

Activity communityLegal involvement Community involvement, pro bono work • • • • • • • Marketing/Communications goals (these di

Strategies: Tactics: Target Audience:

23rd Annual Litigation Institute and Retreat 1–4 Chapter 1—Creating Star Rainmakers Taking Lisa Kaner to Assisting Dave with Assisting

• lunch • research related to a 30(b)6 deposition article

Status Blazers Timbers rtain contactsrtain referral future and Use firm’s sports tickets to ente sources Assist Shareholders in writing articles for legal publications Take firm shareholders to lunch to get to know them Strive for one networking lunch per week Pursue in 2017 in Pursue Pursue further in 2017

• • • • • • Details

Activity Social outings, networking with referral sources, clients Speaking opportunities Contributed articles Internal and cross- marketing Business community involvement

23rd Annual Litigation Institute and Retreat 1–5 Chapter 1—Creating Star Rainmakers

23rd Annual Litigation Institute and Retreat 1–6 Chapter 1—Creating Star Rainmakers Threats Weaknesses Still developing trial skills Family obligations Workload

• • • 2016 2016

JOHN SMITH Experienced Association – –Experienced years 6 Partner Association track rectly support above business goals): the business community Strengths Opportunities Outgoing and personable and personable Outgoing Has a business development mindset Engaged in the legal community Leveraging contactsin localdiversity bars Gain trial experience Continue to provide clients and shareholders with outstanding work product Origination goal: $100,000 Establish a positive reputation in the legal community in involvement Increase

• • • • • • • • • SWOT Analysis OVERALL GOALS: Continue to legaldevelop skills Convert contacts into referral sources work originate to Begin My business objectives: Marketing/Communications goals (these di

23rd Annual Litigation Institute and Retreat 1–7 Chapter 1—Creating Star Rainmakers financial Joined board of Girls Inc.Girls Joined board of Joined MBA CLE CommitteeJoined MBA CLE Attended Say Hey! Event Took Chris Stevens to lunch. Met Took Jane Withers of Moss

ey, trust ey, attorney, estates and • • • • at Say Hey event • Adams to a Blazer game Status accountant, transactions attorn ganizations, Public Defender’s etc. DA for a Day, office, position myself as knowledgeable in business litigation entertain clients and referral Join and eventually chair an MBA committee Become active in OSB Litigation Section Join non-profit or business organization board or prominent committee Attend one networking event per month Do one lunch per week with possible referral sources or someone new that you’ve met via networking Attend OTLA or OADC events Use firm’s sports tickets to sources

• • • • • • • Details Develop mentors inside and outside the firm Continue to do select Pro Bono cases for trial experience Seek out writing and speaking opportunities in order to advisor, etc. etc. advisor, Seek opportunities to get trial experience through pro bono or Chair a legal organization committeeboard or Join the board of a non-legal organization, either a non-profit or business organization Attend legal and business events for networking purposes Develop a strong group of referral sources: Family law attorney, Attorneys at other firms Specific, targeted business groups Alumni organizations

• • • • • • • • • • • Activity communityLegal involvement Community involvement, pro bono work, social events Social outings, networking with referral sources, clients Strategies: Target Audience:

23rd Annual Litigation Institute and Retreat 1–8 Chapter 1—Creating Star Rainmakers Pitched “Filing a complaint” topic Pitched 30(b)6 deposition topic First lunch scheduled with Dave Joined City Club 1-5-16

• • to the Litigation Journal • Markowitz • Status Develop speaking topic to pitch to the MBA YLS Develop article on depositions to pitch to either a legal publication litigation Business Journal’s the for an Portland Write article edition on the topic of new employment laws Take one shareholder to lunch each month Join a business organization with the intent of eventually

• serving on the board or a significant committee • • • • Details Activity Speaking opportunities Contributed articles Internal and cross- marketing Business community involvement

23rd Annual Litigation Institute and Retreat 1–9 Chapter 1—Creating Star Rainmakers

23rd Annual Litigation Institute and Retreat 1–10 Chapter 1—Creating Star Rainmakers

Overall goals: Generate enough work to keep two associates billable First chair trials Develop a niche for which you are known in the legal community Become known outside of the legal community

Katie Smith, Junior Partner 2016 Marketing/BizDev Plan

Financial Goal: $1 million in origination Long-term goal is to average $1.5 million each year.

Short-term business development goals: Develop a referral relationship with: o Jim Barnett of Hall Law o Perry Akers of Pillsbury Barnett o Sheila Nelson of Miles and Crane PC o Jill England of KPMG Get a new case from client Acme Manufacturing Get a case from prospect Dunder Mifflin Continue to develop securities litigation practice

Long-term business development goals: Get ranked by Best Lawyers, and Chambers; continue to be ranked by Super Lawyers Get invited for membership into ACTL or ABOTA Become OSB Litigation Section leader

Short-term Strategy: Stay in touch with Acme Manufacturing, take to a Blazer game Schedule in-house CLE with Tom Donohue of Dunder Mifflin Identify five additional new sources of work i.e. referrals or clients o Page and Company o Sirius Electronics o Cascade Development o Mary Rower of Deloitte o Steve Wilkinson of Banner Wealth Management o Tami Wolff of Wolff Construction . Long-term Strategy: Bring in all my own work – enough to keep two associates busy Expand circle of referral sources Get involved in the business community by joining a board or high-profile committee

23rd Annual Litigation Institute and Retreat 1–11 Chapter 1—Creating Star Rainmakers

Tactics: Become active in OTLA Do four or five CLEs on various securities litigation topics in order to get more known for this area of law Join MBA committee Continue golf/lunches/dinners with clients and referral sources Talk to Acme Manufacturing CEO about possible introductions to her connections Find a business organization to join Review Oregon Private 150 list and look for potential target clients Continue to develop relationships with accountants

23rd Annual Litigation Institute and Retreat 1–12 Chapter 1—Creating Star Rainmakers Threats Weaknesses

• • 2016 2016 NAME Individual Lawyer Individual Marketing Action Plan rectly support above business goals):

Strengths Opportunities Opportunities

• • • • •

SWOT Analysis SWOT Analysis My business objectives: Marketing/Communications goals (these di Strategies: Target Audience: Target

23rd Annual Litigation Institute and Retreat 1–13 Chapter 1—Creating Star Rainmakers

Status

• • • • • • • Details Details Activity Legal community involvement Community pro involvement, work, social bono events Social outings, with networking referral sources, clients Speaking opportunities articles Contributed and cross- Internal marketing Business community involvement Tactics:

23rd Annual Litigation Institute and Retreat 1–14 Chapter 1—Creating Star Rainmakers

23rd Annual Litigation Institute and Retreat 1–15 Chapter 1—Creating Star Rainmakers

23rd Annual Litigation Institute and Retreat 1–16 Chapter 2A What Makes a Great Trial Lawyer Prepared by Bonora Rountree, LLC www.br-tcr.com

Alexis Forbes, Ph.D. Bonora Rountree San Francisco, California

Contents Research and Commentary ...... 2A–1 Positive Comments from Mock Jurors in a Complex Business Litigation Case 2A–4 Negative Comments from Mock Jurors in a Complex Business Litigation Case ...... 2A–5 Chapter 2A—What Makes a Great Trial Lawyer

23rd Annual Litigation Institute and Retreat 2A–ii Chapter 2A—What Makes a Great Trial Lawyer

What Makes a Great Trial Lawyer – Research & Commentary

1. Frank, M. J. & Morera , O. F. (2012). Professionalism and Advocacy at Trial –Real Jurors Speak in Detail about the Performance of Their Advocates. Baylor Law Review, 64, 1-49. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2586286 Analysis of data gathered from 955 actual jurors in both criminal and civil cases. The mock jurors rated the plaintiff, prosecution, and defense attorneys on ability and likeability.

Factors that were strongly or moderately Plaintiff Defense correlated with jurors’ ratings of attorneys’: Ability Likeability Ability Likeability Tried Case in Honorable Way 9 9 9 9 Was Honest at All Times 9 9 9 9 Believed in Their Case 9 9 Understood the Strengths & Weaknesses 9 9 Asked Witnesses Important Questions 9 9 Had Stronger Personality than Opposing Counsel 9 Used Appropriate Tone for Objections 9 Brought Attention to Bad Parts of Their Case 9

2. Shari Seidman Diamond, Jonathan D. Casper, Cami L. Heiert, Anna-Maria Marshall, Jurors Reactions to Attorneys at Trial, 87 J. Crim. L. & Criminology 17 (1996-1997) http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6902&conte xt=jclc

Provide qualified data from research project about the quantity and content of discussions related to attorney characteristics from 1,925 mock jurors. The jurors watched videos of mock trials for either antitrust, during the damages phase; or death penalty cases, during the sentencing phase. Authors also give information about the stability of the jurors’ opinions/leanings on the case after crucial demarcations (e.g. Plaintiff’s Opening Statement, Defendant’s Opening Statement, etc.).

Notably, there was an average of only four comments per deliberation that referenced attorneys. Of the 248 comments referencing the antitrust attorneys, only 7% of comments referred to the attorneys’ personal characteristics. Similarly, the death penalty case mock jurors made only 6% of their comments about attorneys’ personal characteristics. However, in the antitrust case, 32% of the comments were about attorneys’ fees.

23rd Annual Litigation Institute and Retreat 2A–1 Chapter 2A—What Makes a Great Trial Lawyer

3. Hans, Valerie P. and Sweigart, Krista, “Jurors’ Views of Civil Lawyers: Implications for Courtroom Communication” (1993). Cornell Law Faculty Publications. Paper 321. http://scholarship.law.cornell.edu/facpub/321

Quotes from 269 real jurors from 36 different civil cases in a State Court. The jurors reveal what appealed to them and what alienated them. The article also provides quotes for “why the jurors said they tried to stay neutral,” “why the jurors said they were drawn to one side after the opening statements,” and “what made one attorney better [than the other].”

Attorney Characteristics that Alienated Jurors in Civil Cases (Hans & Sweigart, 1993) • Lack of Credibility • Poor Demeanor • Excessive Appeals to the Jurors' Sympathies • Poor Organization • Attacking or Badgering the Witnesses • Behaviors or Arguments that Do Not Seem Genuine

4. Pew Research Center provides people’s perceptions about how much different occupational groups contribute to society’s well-being. Out of the 10 occupational groups that Pew researched, lawyers were perceived as contributing the least amount to society’s well-being. Even in 2009, business executives were perceived as contributing more to society’s well-being than lawyers were. http://www.pewforum.org/2013/07/11/public-esteem-for-military-still-high/

5. Since 1976, Gallup has asked Americans, “Please tell me how you would rate the honesty and ethical standards of people in these different fields – very high, high, average, low, or very low?” Out of the 21 professions ranked in the 2015 poll, Lawyers ranked as the 12th most honest and ethical. In this poll, lawyers ranked higher than Real Estate Agents, Labor Union Leaders, Business Executives, Stockbrokers, Advertising Practitioners, Car Salespeople, Telemarketers, Members of Congress, and Lobbyists. The chart below illustrates the opinions of attorneys’ honesty and ethical standards over the past 39 years. http://www.gallup.com/poll/1654/honesty-ethics-professions.aspx

Gallup Poll Data for Public Opinion of Attorneys' Honesty & Ethical Standards over Time 60%

50%

40%

Respondents 30%

20%

10% Percentage of of Percentage

23rd Annual Litigation Institute and Retreat 2A–2 Chapter 2A—What Makes a Great Trial Lawyer

6. Bennett, M.W. (2013). Eight traits of great trial lawyers: A federal judge’s view on how to shed the moniker “I am a litigator”. The Review of Litigation, 33, 1-43.

Judge Bennett gives a spirited rundown of the qualities that are essential for all great trial lawyers.

“Spellbinding Raconteur” •Keep the fact finder entertained, interested, and focused.

•“Passion for long-term goals” “Grit” •Tenacity and will for persevering through losses and setbacks

“Virtuoso Cross- •Use a calculated plan and foresight to keep you from losing control of your Examiner” case

•Develop narratives and themes from the 1st client interview “Preparation” •Draft jury instructions before executing the retention agreement

•Be courteous to court staff, witnesses, judges, jurors, and to opposing “Unfailing Courtesy” counsel

•Use listening skills to execute effective direct and cross-examination “Great Listener” •Prevent repeating yourself and irritating the judge or jury

•“Know when not to say something” “Unsurpassed Judgment” •“Bring out the weakness of your client’s case before the other side does”

•“Meet with opposing counsel to see if issues can be voluntarily narrowed” “Reasonableness” •“Conferring with the other side in good faith before filing discovery motions”

23rd Annual Litigation Institute and Retreat 2A–3 Chapter 2A—What Makes a Great Trial Lawyer

Positive Comments from Mock Jurors in a Complex Business Litigation Case

• "Very clear, concise speaker. Explanations thorough and very respectful." (Found Against Referee)

Clarity • “Broke down what damages would be in an easy way to understand.” (Found In Favor of Referee) • “Clear explanations- concise- believable.” (In Favor)

• "Personable, trustworthy." (In Favor)

Trustworthiness • "I think he was very likeable. He seemed honest." (In Favor) • "He felt down-to-earth. He wasn't bullshitting me." (Against)

• "I think his personableness made it easy to really be engaged with what her wass saying. And so it wasn't just all technical. There was more of a human element to how he was explaining it to me. So Communication for me, and I'm more of a behaviorist than I am a technical person, so for me, that's what resonated with me. But it-- he also knew what he was talking about--at least he sounded like he Style knew what he was talking about." (Against) • " Personable, clearly communicated."(Against)

• "Extremely likeable, made his points hit hard." (Against) Likeability • "Very clear, concise speaker. Thorough explanations. Very friendly. Fluff was added." (In Favor) • "Down home, good personality." (Against)

• "I think for me it was probably a balance of confidence and arrogance because the confidence is, he knows what he's talking about but the delivery was...:You need to believe this." (In Favor) • "You had to listen to what he was saying even if for some reason in the back of your mind, you disagreed with it or you didn't see exactly where he was coming from. His personality was big Presentation enough where it overcame that, where you did want to hear what he had to say." (Against) • "I liked her spirit. She came accross like she really believed in what she was saying." (In Favor) • I loved how she came in kind of mad and spunky. 'They said this and I'm going to debate this,' she just pulled me right in. I felt like she cared so much about what she was talking about that's how--I really liked her.

23rd Annual Litigation Institute and Retreat 2A–4 Chapter 2A—What Makes a Great Trial Lawyer

Negative Comments from Mock Jurors in a Complex Business Litigation Case

• "Wandered too far off the map, pushing linguistic and rhetorical points to the point of eye rolling. Reflected discussion, added confusion --which wound up backfiring." (Found Against Referee) Clarity • “Drilled a few points home to the point of insulting our intelligence, but brought forth relevant schematics/explanations that only became more relevant as the case continued.” (Found In Favor of Referee)

• "I believed his facts but somethings about him was fishy." (In Favor) • "Didn't seem very honest. Seemed like a high paid attorney." (Against) Trustworthiness • "At some points [he seemed like]... like you know Eddie Haskell from Leave it To Beaver? You know what i'm talking about?" (In Favor) • "Oversimplified too much. Said lies/misrepresentations/misstatements." (Against)

• "Kept unbuttoning his jacket, felt like he was trying to use the power of persuasion more Communication than having something important to say." (Against) • "He just walked in and started talking so there was no connection. I was like, 'Who is this Style guy?" (Against) • "Very nervous, made her seem to have no confidence in her arguments." (In Favor

• "I don't even which one he was...sorry" (Against) • "He was too fast at his presentations. He didn't care if you didn't like him." (Against) Likeability • "Hard to follow --seemed to support 'good ole boy' network." (Against) • "I liked his accent but I was falling asleep." (Against)

• "A lot of what they were saying tended to feel lke smoke, really. It wasn't feeding me anything positive that I felt I could relate to." (Against) Presentation • "Lost most of what she said. Didn't talk well to slides, seemed frazzled. My attention was more on her being frazzled and trying to follow the slides." (Against)

23rd Annual Litigation Institute and Retreat 2A–5 Chapter 2A—What Makes a Great Trial Lawyer

23rd Annual Litigation Institute and Retreat 2A–6 Chapter 2B What Makes a Great Trial Lawyer

Gregory Kafoury Kafoury & McDougal Portland, Oregon Chapter 2B—What Makes a Great Trial Lawyer

23rd Annual Litigation Institute and Retreat 2B–ii Chapter 2B—What Makes a Great Trial Lawyer

I. Always on the Offense Never take a step backward. Do your explanations in a positive form, before the defenses raises the issue. Never looked rattled. II. Creativity Do things other lawyers don’t do. Ask depo questions others don’t ask. Depositions: Avoid patterns, mix things up, and come from different angles. Video all depos; use at every stage. Ill. Drama Use language for emotion. Disarm the defenses . . . “every step he takes.” Examples: Golfing Swinging Doors IV. Role Playing In argument, portray players from the drama. Billy S. Dr. B. V. Stay Human Never create social distance. Common language. John Edwards story. Aphorisms. Historical and cultural references. Common law stories. . . . “A drunken man. . . .” Eggshell skull story. History of the jury.

23rd Annual Litigation Institute and Retreat 2B–1 Chapter 2B—What Makes a Great Trial Lawyer

VI. Empower the Jury Enlarge the audience. Who will hear? News. Every case is punitive. “You set the standard.” VII. NITA Turning a great fact into twenty questions. Leading a horse to water. VIII. Judo . . . Learn to Flip Listen to the defense. Catch the phrase . . . use their words against them. Foster Smith . . . “Better things to do. . . .” Other end of the telescope. Defense attorney “same attitude that brings us here.” IX. Imposing your Will What historical figures have in common. R.N. and the auto.. Churchill, Napoleon, Fidel X. Use Everything You Have Occupy the space. Pulling the microphone. Voice: When to be loud, soft. . . . Range of emotions. Use silence . . . especially with video. Evasive witness . . . draw closer . . . stare them down . . . take another step with each question. Compliment: “We couldn’t wait. . . .”

23rd Annual Litigation Institute and Retreat 2B–2 Chapter 2B—What Makes a Great Trial Lawyer

XI. Finale Find the grandeur in the mundane. J.J. Story . . . R. Trotter.

23rd Annual Litigation Institute and Retreat 2B–3 Chapter 2B—What Makes a Great Trial Lawyer

23rd Annual Litigation Institute and Retreat 2B–4 Chapter 3A Tips from the Bench: Trying Cases in Oregon’s State Courts

The Honorable Stephen Bushong Multnomah County Circuit Court Portland, Oregon

Contents I. Resources ...... 3A–1 II. Pre-Trial Preparation—Written Materials for Trial ...... 3A–1 A. Trial Memorandum ...... 3A–1 B. Motions in Limine ...... 3A–1 C. Jury Instructions ...... 3A–1 D. Verdict Form ...... 3A–1 E. “Pocket” Briefs ...... 3A–1 F. Best Practices ...... 3A–1 G. Common Mistakes 3A–2 III. Jury Selection 3A–2 A. Best Practices ...... 3A–2 B. Common Mistakes 3A–3 IV. Opening Statement ...... 3A–4 A. Best Practices ...... 3A–4 B. Common Mistakes 3A–4 V. Presenting the Evidence 3A–5 A. Direct Examination ...... 3A–5 B. Cross Examination 3A–5 C. Redirect Examination ...... 3A–5 D. Effective Use of Exhibits and Technology 3A–5 E. Objections 3A–6 F. Best Practices ...... 3A–6 G. Common Mistakes 3A–7 VI. Closing Argument ...... 3A–7 A. Best Practices ...... 3A–8 B. Common Mistakes 3A–8 VII. Verdict 3A–9 VIII. Personal Conduct ...... 3A–9 A. The Judge’s Perspective 3A–9 B. The Jury’s Perspective 3A–9 IX. Appendix ...... 3A–10 Sample Verdict Form—Products Liability Case ...... 3A–11 Sample Verdict Form—Negligence Case ...... 3A–19 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

23rd Annual Litigation Institute and Retreat 3A–ii Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

I. Resources

Recommended Practices for Civil Jury Trials in Multnomah County Circuit Court, available at http://www.mbabar.org/assets/documents/courts/civiljurytrialreport.pdf

II. Pre-Trial Preparation--Written Materials For Trial

A. Trial Memorandum. Use your trial memorandum to (1) establish the framework for jury instructions; (2) set the stage for an anticipated motion for a directed verdict; and (3) educate the judge on any significant evidentiary issues that are expected to arise during trial. There is no need to include your jury argument in the trial memorandum.

B. Motions in Limine. Use motions in limine to get pretrial rulings excluding (or admitting) evidence that is in dispute. Do not submit “boilerplate” motions. Emphasize quality, not quantity.

C. Jury Instructions. Use the Uniform Civil Jury Instructions whenever possible. Don’t forget to fill in the blanks, or choose from suggested alternatives. Special instructions should be stated in neutral terms, with appropriate citations (including jump cites). When necessary, summarize complex statutory or regulatory schemes to make them understandable.

D. Verdict Form. Your verdict form should logically follow from your jury instructions. Use the same terminology. Make sure you have a good understanding of the questions the jury will be expected to answer before you start the trial. Consider using a table format to make things easier for jurors. See appendix for samples.

E. “Pocket” Briefs. In some cases, have short briefs ready to give to the judge on key evidentiary or other legal issues that may arise during trial.

F. Best Practices

• Use a trial notebook

• Prepare your jury instructions and verdict form before trial

• Practice your opening and closing arguments in front of a mirror

23rd Annual Litigation Institute and Retreat 3A–1 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

• Use demonstrative exhibits to assist jurors’ understanding of the evidence

• Confer with opposing counsel regarding exhibits, deposition excerpts, other issues that may or may not be in dispute

• Stipulate in advance of trial to the admissibility of exhibits

• Test technology in the courtroom beforehand; edit video testimony to minimize juror boredom

G. Common Mistakes

• Having unrealistic expectations about the settlement value of the case

• Putting off discovery until the last minute on the assumption that the case will settle

• Failing to organize/edit trial exhibits

• Failing to edit videotaped depositions in advance

• Failing to talk to opposing counsel before trial about trial exhibits, deposition excerpts, other issues

III. Jury Selection

Ask potential jurors about relevant life experiences, opinions and attitudes. Use short, open-ended questions. Don’t make a speech or talk too much. Do not use “conditioning” questions that attempt to “plant the seed” for a favorable verdict. Consider using a jury questionnaire for longer trials. Don’t be afraid to challenge a juror for cause.

A. Best Practices

• Ask open-ended questions; learn about their life experiences and get them to tell you their stories.

23rd Annual Litigation Institute and Retreat 3A–2 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

• Remember that you are trying to figure out which jurors you will excuse, either for cause or with a peremptory challenge; you will not win your case in voir dire.

• Use favorable jurors to educate others and establish themes, even though the other side will likely bump them.

• Screen questions with your trial judge in advance if you think the other side might object.

• Orient jurors by explaining their task is to speak honestly and to share their experiences and attitudes – one way is to say the parties are looking for the “best fit.”

• Assure jurors there is no “right” answer to your questions.

• Listen to jurors’ answers to your questions; follow up where appropriate, but don’t argue or correct them.

• Ask jurors about their attitudes and experiences with the critical issues in your case, but don’t attempt to condition them.

• Manage juror personalities; don’t let an outgoing juror dominate or ignore shy jurors.

B. Common Mistakes

• Attempting to argue your case or “condition” the jurors to rule in your favor.

• Talking too much; not listening.

• Arguing with prospective jurors who express views that are contrary to yours or harmful to your case.

• Failing to ask questions that matter – about prior experiences and attitudes.

• Asking questions designed to use a juror as an “expert” witness for your case.

23rd Annual Litigation Institute and Retreat 3A–3 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

• Attempting to condition or manipulate jurors; jurors understand and resent you for trying this.

• Taking too long; there may not be a time limit, but jurors resent it when they think you’re wasting their time

IV. Opening Statement

Tell the story from a key player’s perspective. Make it interesting; don’t just summarize the testimony you expect to elicit from each witness. Set the scene; paint a picture with your words. Establish (and use) a theme for the trial. Define complex or technical words/phrases. Identify the cast of characters. Use visuals. Use a timeline where appropriate.

A. Best Practices

• Tell a story; pick your client’s or a key witness’s perspective and let the jury re-live the experience

• Use active and descriptive words; make the jury “see” and “feel” what happened

• Use demonstrative exhibits

• Define key terms; introduce the cast of characters; use a timeline

• Make it interesting; jurors are used to seeing the whole story unfold in an hour, as on “Law and Order”

• Pick a theme and stick to it

• Keep it short; you can fill in some of the details later

• Introduce your client; tell your client’s story

B. Common Mistakes

• Reciting what each witness will say in order of appearance

• Telling the jury that the opening statement is not evidence

23rd Annual Litigation Institute and Retreat 3A–4 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

• Relying too much on technology

• Arguing and drawing conclusions for the jury; let them draw the conclusions

V. Presenting the Evidence

A. Direct Examination

Focus the jury’s attention on the witness. Get the testimony out in bite-sized pieces instead of a lengthy narrative. Stop the witness and ask a “why” question when appropriate. Use part of the answer in the next question to emphasize important points (“looping”). Use short, open-ended questions, but use leading questions to get through non-essential information more quickly or to avoid a misstep in a problem area. Use your experts to “teach” the jury about complex, technical issues. Use graphics, demonstrative exhibits, and other visuals to reinforce and explain the testimony. Avoid using lengthy videotaped testimony and long deposition excerpts.

B. Cross Examination

Don’t try to do too much. Don’t go over the witness’s testimony on direct in excruciating detail in the hopes that he will get tripped up on the details. Figure out what points you expect to make with the witness, make those points, and then stop. Typical points: perception; memory; interest in the litigation or other bias; qualifications to offer expert opinions. Control the witness. Use leading statements to make your points and ask the witness to confirm them. Use the other side’s expert to get testimony that helps your case, when possible. Use deposition testimony to impeach when appropriate, but do it so it has an impact on the jury.

C. Redirect Examination

Use redirect to give your witness a chance to explain any troublesome or confusing answers. Do not “save” key testimony for redirect; that will typically open the door for re-cross.

D. Effective Use of Exhibits and Technology

Make sure the jury can see the document the witness is discussing by projecting it on a screen or publishing it to the jury. Consider using juror notebooks. Highlight key portions of the document. Make a clear record by referring to documents by exhibit

23rd Annual Litigation Institute and Retreat 3A–5 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

number. Power point presentations can be effective, but don’t rely too heavily on them and be sure to clear it with the judge first.

E. Objections

Make short, one-word objections (relevance, hearsay) in front of the jury. Ask to be heard outside the presence of the jury if you want to argue the point. Don’t be afraid to object (jurors expect lawyers to object on occasion), but don’t overdo it. Use your judgment; don’t object on minor points that don’t make a difference.

F. Best Practices

• Make sure an exhibit has been received before showing it to the jury

• Make sure the jury can see the exhibit the witness is describing; project exhibits onto a screen (best) or use juror notebooks

• Let your witnesses tell the story on direct examination; don’t lead your own witnesses

• Make your points on cross-examination and stop; don’t try to do too much

• Object when necessary; jurors expect lawyers to object occasionally. Remember, you’re making a record for possible appeal

• Don’t object just because you can; jurors don’t like lawyers who object too much and make it appear that they have something to hide (or want to make life difficult for opposing counsel)

• Make specific objections based on the rules of evidence

• Use Rule 104 hearings appropriately (to challenge an expert’s qualifications or the basis for an expert’s opinion)

• Use your experts to teach the jurors

• Control the other side’s experts on cross

23rd Annual Litigation Institute and Retreat 3A–6 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

• Use learned treatises for impeachment; don’t try to do too much with them

• Don’t rely too heavily on deposition testimony; use when appropriate for impeachment

G. Common Mistakes

• Offering exhibits that include objectionable material; better to redact objectionable material and have the exhibit received than to have it excluded

• Showing illustrative or other exhibits to the jury without the judge’s approval; can be embarrassing in front of the jury if objection is sustained

• Failing to object when necessary, or failing to make specific objections based on the rules of evidence

• Making “speaking” objections in front of the jury

• Trying to do too much on cross; don’t lose control, and don’t let the other side’s witness repeat (and reinforce) testimony on direct

• Relying too heavily on depositions; don’t read the other side’s deposition to the jury if the person is sitting right in front of them

VI. Closing Argument

Trust the jury; by the end of the trial, they understand. Do not summarize evidence the jury has already heard several times. Argue the circumstances, the credibility of the witnesses, or other critical issues. Use analogies and examples. Explain why your version of the facts makes more sense. Use the jury instructions and verdict form; tell the jury how you want them to answer the questions and why. Ask questions; answer some of them. Focus on the key issues, and give the jury some direction. Tell them the exhibit numbers of the exhibits you want them to look at during deliberations. Don’t bluster or overstate the facts of the case. Pay attention to the time; don’t be afraid to stop.

23rd Annual Litigation Institute and Retreat 3A–7 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

A. Best Practices

• Use the jury instructions and verdict form

• Argue and persuade; don’t just summarize the evidence

• Use demonstratives and visuals

• Trust the jury; by the end of the trial, they understand and want to decide the case

• Focus on the key points in dispute; don’t try to argue everything

• Juries want to do the right thing; explain why ruling in your favor is the right thing to do

• Address any weakness or “elephants in the room”

• Be sure to address and explain damages; offer alternatives to the other side’s damages calculations

• Ask jurors to look at specific exhibits (by number), but don’t overdo it

• Keep it short, and end on a strong point

B. Common Mistakes

• Torturing the jury by making them sit through lengthy, unnecessary recitation of all the evidence

• Referring to facts that are not in evidence

• Attacking opposing counsel; do not make it personal

• Failing to address damages or alternative explanations for what happened

• Ignoring the jurors’ body language

23rd Annual Litigation Institute and Retreat 3A–8 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

VII. Verdict

If you lose, ask the judge to poll the jury on the record. Confirm the results on the record. Make sure the “same nine” jurors have agreed on all necessary answers.

VIII. PERSONAL CONDUCT

A. The Judge’s Perspective

• Be professional and respectful at all times. Lawyers must behave with courtesy towards everyone in/outside the courtroom. You are never offstage if you are within sight or hearing distance of any juror or member of the court staff.

• If you know a matter for the court is going to take more than a few minutes, let the judge know in advance so it can be arranged to coincide with a jury break.

• Speaking objections are never appropriate during a jury trial. If you need to make a record, ask to be heard outside the presence of the jury.

• Judges do not like surprises – keep your judge apprised of the order of witnesses, which exhibits you intend to offer and legal issues that are critical to your case.

• Be realistic in your estimates about how long the matter will take. Don’t tell the judge that you can try the case in 2 days and then take 4. Make a schedule and stick to it.

B. The Jury’s Perspective

• Jurors do not appreciate lawyers who are disorganized and seemingly unprepared. If you are using a video, PowerPoint, or other “high tech” device, make sure the equipment works and you know how to operate it. Cue the equipment to begin at the correct place. Be prepared with your exhibits.

23rd Annual Litigation Institute and Retreat 3A–9 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

• Jurors do not like it when lawyers seem to be wasting their time with cumulative evidence, repetitive arguments, or numerous “matters for the court” during trial.

• Jurors do not like lawyers being rude to each other, to their support staff, to court staff, or anyone else. They’re always watching.

• Jurors do not like to be manipulated. Persuade jurors to come to a just decision; manipulation rarely works.

• Jurors do not like it when lawyers take “cheap shots” at witnesses during cross examination or otherwise attack sympathetic witnesses.

IX. Appendix

Sample verdict forms from a products liability case and a negligence case.

23rd Annual Litigation Institute and Retreat 3A–10 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

IN THE CIRCUIT COURT FOR THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

J.R.T. NURSERIES INC., JRT NURSERIES ) (US), INC., and DEZWAAN NURSERIES ) LTD., ) ) Nos. 1002-02929 Plaintiffs, ) 1006-09594 ) ) v. ) VERDICT ) ) SUN GRO HORTICULTURE ) DISTRIBUTION, INC.; SUN GRO ) HORTICULTURE CANADA, LTD; and ) WILBUR-ELLIS COMPANY, ) ) Defendants.

We the jury, being duly impaneled and sworn, find as follows: I. Product Liability Claims

A. Claims Against Sun Gro defendants.

1. Did one or both of the Sun Gro SGH Distribution Answer question 2. defendants sell as part of its business ____Yes ____No the Multicote 15-9-12 fertilizer used by the plaintiffs? SGH Canada __X__ Yes ____ No (admitted) 2. Was the Multicote 15-9-12 fertilizer If “Yes,” answer in a defective condition that was ____ Yes ____ No question 3. If unreasonably dangerous to plaintiffs’ “No,” proceed to plants when it left Sun Gro’s control? section IB. 3. Did the Multicote 15-9-12 fertilizer JRT Nurseries Answer question 4. reach plaintiffs without any ____ Yes ____ No substantial change in its condition? DeZwaan Nurseries ____ Yes ____ No

VERDICT - 1

23rd Annual Litigation Institute and Retreat 3A–11 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

4. Did the defective condition of the JRT Nurseries If “Yes,” your Multicote 15-9-12 fertilizer cause ____ Yes ____ No verdict on this damage to the plaintiffs? claim is in favor of DeZwaan Nurseries that plaintiff. ____ Yes ____ No Proceed to section IB.

B. Claim Against Wilbur-Ellis.

1. Did Wilbur-Ellis sell as part of its If “Yes,” answer business he Multicote 15-9-12 ____ Yes ____No question 2. If fertilizer used by the plaintiffs? “No,” proceed to section II. 2. Was the Multicote 15-9-12 fertilizer in If “Yes,” answer a defective condition that was ____ Yes ____No question 3. If unreasonably dangerous to plaintiffs’ “No,” proceed to plants when it left Wilbur-Ellis’s section II. control? 3. Did the Multicote 15-9-12 fertilizer JRT Nurseries Answer question reach plaintiffs without any ____ Yes ____ No 4. substantial change in its condition? DeZwaan Nurseries ____ Yes ____ No

4. Did the defective condition of JRT Nurseries If “Yes,” your Multicote 15-9-12 fertilizer cause ____ Yes ____ No verdict on this damage to the plaintiffs? claim is in favor DeZwaan Nurseries of that plaintiff. ____ Yes ____ No Proceed to section II.

II. Negligence Claims

A. Claim Against Sun Gro defendants

1. Were either or both of the Sun SGH Distribution If either answer is Gro defendants negligent or at ____ Yes ____ No “Yes,” answer fault in one or more of the ways question 2. If both plaintiffs claim? SGH Canada answers are “No,” ____ Yes ____ No proceed to section IIB.

VERDICT - 2

23rd Annual Litigation Institute and Retreat 3A–12 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

2. Was the negligence or fault that JRT Nurseries If “Yes,” your verdict you found a cause of plaintiffs’ ____ Yes ____ No on this claim is in damages? favor of that plaintiff. DeZwaan Nurseries Proceed to section IIB. ____ Yes ____ No

B. Claim Against Wilbur-Ellis.

1. Was Wilbur-Ellis negligent or at If “Yes,” answer fault in one or more of the ways ____ Yes ____ No question 2. If “No,” plaintiffs claim? proceed to section III. 2. Was Wilbur-Ellis’ negligence or JRT Nurseries If “Yes,” your verdict fault a cause of plaintiffs’ ____ Yes ____ No on this claim is in damages? favor of that plaintiff. DeZwaan Nurseries Proceed to section III. ____ Yes ____ No

III. Express Warranty Claim (against Sun Gro defendants only).

1. Did either or both of the Sun “Controlled Release” If “No” to all parts, Gro defendants make one or ____Yes ____No your verdict is for the more of the express (SGH Distribution) Sun Gro defendants warranties plaintiffs claim on this claim. relating to the Multicote 15- ____ Yes ____ No Proceed to question 9-12 fertilizer? (SGH Canada) 3. If “Yes” to any part, proceed to “Guaranteed Analysis” question 2. ____ Yes ____ No (SGH Distribution)

____ Yes ____ No (SGH Canada)

“As Good as or Better” than Osmocote ____ Yes ____ No (SGH Distribution)

____ Yes ____ No (SGH Canada)

VERDICT - 3

23rd Annual Litigation Institute and Retreat 3A–13 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

2. Did either or both of the Sun “Controlled Release” Answer only the parts Gro defendants breach one or ____ Yes ____ No that correspond to more of the express (SGH Distribution) the express warranties they made? warranties you

determined were ____ Yes ____ No made in response to (SGH Canada) question 1. If all parts are “No,” your “Guaranteed Analysis” verdict is for the Sun ____ Yes ____ No Gro defendants on (SGH Distribution) this claim. If “Yes” to any part, proceed to

question 3. ____ Yes ____ No (SGH Canada)

“As Good as or Better Than Osmocote” ____ Yes ____ No (SGH Distribution)

____ Yes ____ No (SGH Canada) 3. Did plaintiffs notify the Sun JRT Nurseries If either answer is Gro defendants of the breach ____ Yes ____ No “Yes,” answer within a reasonable time? question 4. If both answers are “No,” DeZwaan Nurseries proceed to section IV. ____ Yes ____ No

4. Did plaintiffs sustain damages JRT Nurseries If “Yes,” your verdict as a result of the breach? ____ Yes ____ No on this claim is in favor of that plaintiff. Proceed to section IV. DeZwaan Nurseries ____ Yes ____ No

VERDICT - 4

23rd Annual Litigation Institute and Retreat 3A–14 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

IV. Defenses: Comparative Fault/Negligence; Statute of Limitations; Failure to Mitigate Damages

1. Were either or both of the JRT Nurseries If either answer is plaintiffs negligent or at fault in ____Yes ____No “yes,” answer one or more of the ways question 2. If both defendants claim? DeZwaan Nurseries answers are “no,” ____ Yes ____ No proceed to question 3.

2. Was the fault or negligence that JRT Nurseries Proceed to you found a cause of the ____ Yes ____ No question 3. plaintiffs’ damage? DeZwaan Nurseries ____ Yes ____ No 3. What is the relative percentage Enter “0” for any of the parties’ negligence or party that you did ____ % (Sun Gro) fault that caused damage to JRT not find to be negligent or at Nurseries? ____ % (Wilbur-Ellis) fault. The ____ % (JRT Nurseries) percentages must equal 100 %.

4. What is the relative percentage Enter “0” for any of the parties’ negligence or party that you did ____ % (Sun Gro) fault that caused damage to not find to be negligent or at DeZwaan Nurseries? ____ % (Wilbur-Ellis) fault. The ____ % (DeZwaan) percentages must equal 100 %.

5. Did JRT Nurseries know, or If “Yes,” then JRT’s should JRT Nurseries have claim for damages ____ Yes ____ No reasonably discovered, by before February 26, 2008 is barred February 26, 2008, that the by the statute of Multicote 15-9-12 caused limitations. damage to JRT’s plants? Proceed to

VERDICT - 5

23rd Annual Litigation Institute and Retreat 3A–15 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

question 6

6. Did either or both of the JRT Nurseries If “Yes,” exclude plaintiffs fail to exercise from any damage ____ Yes ____ No reasonable care to avoid award the amount of damages that increasing their damages in one DeZwaan Nurseries could have been or more of the ways defendants ____ Yes ____ No avoided. If “No,” claim? do not reduce the damages award on account of this defense.

V. Damages (Complete this section only if you found in favor of one or both plaintiffs on one or more of the claims in sections I, II or III).

1. What are JRT Do not include any Nurseries’ damages incurred damages? $______before February 26, (direct economic losses) 2008 if you found that that portion of $______JRT’s damage claim (indirect or consequential economic is barred by the losses, excluding prejudgment interest) statute of limitations (section $______IV(5)). All amounts (prejudgment interest) are in Canadian dollars. Do not reduce the amounts by the percentage of JRT Nurseries’ negligence or fault, if any.

2. What are All amounts are in DeZwaan Canadian dollars. $______Nurseries’ Do not reduce the damages? (direct economic losses) amounts by the percentage of DeZwaan Nurseries’

VERDICT - 6

23rd Annual Litigation Institute and Retreat 3A–16 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

negligence or fault, if any.

Please sign and return this verdict form to the court clerk.

DATED: ______, 2012.

Presiding Juror

VERDICT - 7

23rd Annual Litigation Institute and Retreat 3A–17 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

23rd Annual Litigation Institute and Retreat 3A–18 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

IN THE CIRCUIT COURT FOR THE STATE OF OREGON

FOR THE COUNTY OF MULTNOMAH

NAJLA FARAH, ) ) Plaintiff, ) ) Nos. 1109-12050 ) v. ) ) VERDICT ) DIRT AND AGGREGATE INTERCHANGE, ) INC., an Oregon corporation; and THE CITY ) OF GRESHAM, an Oregon Municipal ) Corporation, ) ) Defendants. ) )

We the jury, being duly impaneled and sworn, find as follows:

I. Negligence Claim—against Dirt & Aggregate

1. Was Dirt & Aggregate negligent in one or If “Yes”, answer more of the ways plaintiff claims? ____ Yes ____No question 2. If “No”, your verdict is in Dirt & Aggregate’s favor on this claim. Proceed to section II.

2. Was Dirt & Aggregate’s negligence a If “Yes,” your cause of damage to the plaintiff? ____ Yes ____ No verdict is in plaintiff’s favor on this claim. If “No,” your verdict is in Dirt & Aggregate’s favor on this claim Proceed to section II.

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23rd Annual Litigation Institute and Retreat 3A–19 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

II. Negligence Claim—against City of Gresham

1. Was the City of Gresham negligent If “Yes,” answer in one or more of the ways plaintiff ____ Yes ____ No question 2. If “No,” claims? your verdict is in favor of City of Gresham on this claim. Proceed to section III.

2. Did the City of Gresham’s If “Yes,” your verdict negligence cause damage to the ____ Yes ____ No on this claim is in favor plaintiff? of plaintiff on this claim. If “No,” your verdict is in favor of City of Gresham on this claim. Proceed to section III.

III. Comparative Negligence Defense (Complete this section only if you found in favor of the plaintiff on one or both of the claims in sections I or II).

1. Was plaintiff negligent or at If “Yes,” proceed to fault in one or more of the ____Yes ____No question 2. If “No,” skip ways defendants claim? questions 2 and 3 and proceed to section IV.

2. Was plaintiff’s negligence a If “Yes,” answer question cause of her damages? 3. If “No,” skip question ____ Yes ____ No 3 and proceed to section IV.

3. What is the relative Enter “0” for any party percentage of the parties’ that you did not find to be negligence that caused ____ % (Dirt & Aggregate) negligent. The damage to plaintiff? percentages must equal ____ % (City of Gresham) 100 %. ____ % (Plaintiff) Proceed to section IV.

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23rd Annual Litigation Institute and Retreat 3A–20 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

IV. Damages (Complete this section only if you found in favor of plaintiff on one or both of the claims in sections I or II).

1. What are plaintiff’s Do not reduce the damages? amounts by the $______percentage of the (economic damages) negligence, if any, of the plaintiff. $______(noneconomic damages)

Please sign and return this verdict form to the court clerk.

DATED: January ____, 2014.

Presiding Juror

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23rd Annual Litigation Institute and Retreat 3A–21 Chapter 3A—Tips from the Bench: Trying Cases in Oregon’s State Courts

23rd Annual Litigation Institute and Retreat 3A–22 Chapter 3B Appearance Can Be Everything, Especially in a Case Where You’ve Got Nothing

The Honorable Timothy Gerking Jackson County Circuit Court Medford, Oregon Chapter 3B—Appearance Can Be Everything, Especially in a Case Where You’ve Got Nothing

23rd Annual Litigation Institute and Retreat 3B–ii Chapter 3B—Appearance Can Be Everything, Especially in a Case Where You’ve Got Nothing

The lawyer’s appearance, courtroom conduct, and demeanor should all instill confidence with the jury.

1. Be meticulous in your attire (as well as the attire of your client).

2. Be organized.

a. Trial book.

b. Counsel table.

c. Trial bag.

3. Be focused and efficient in your voir dire.

4. Be clear, concise, and nonargumentative in your prepared opening statement.

5. Be professional.

a. Be courteous with opposing counsel.

b. Avoid argument with counsel in front of the jury.

c. Be courteous, but persistent, when examining the opposing party and adverse witnesses.

d. No histrionics.

e. Minimize objections—make them count.

6. Be interesting and engaging in your closing argument.

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Chapter 3B—Appearance Can Be Everything, Especially in a Case Where You’ve Got Nothing

23rd Annual Litigation Institute and Retreat 3B–2 Chapter 3C Best Trial Practices in Oregon State Courts: “Quality of Sausage (and Trial) Depends on Quality Ingredients and Preparation” (Noble Pig)—Presentation Slides

The Honorable Mary Mertens James Marion County Circuit Court Salem, Oregon Chapter 3C—Best Trial Practices in Oregon State Courts—Presentation Slides

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Chapter 3C—Best Trial Practices in Oregon State Courts—Presentation Slides

TIPS FROM THE BENCH Best trial practices in Oregon State Courts: “Quality of sausage (and trial) depends on quality ingredients and preparation” Noble Pig*

State v Mains (1983)

 “The modern jury trial is one of the most important, demanding exhausting, probing and sometimes humbling events that can be experienced by a person, be that person a part, a witness, a lawyer, or a judge.”

 295 Or 640, 658 (1983)

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Are we noble? Are we pig?

 “Litigation: A machine which you go into as a pig and come out of as a sausage.”  Ambrose Bierce, journalist of the late 19th century.

 “Sausage quality depends on the skill of the wurstmeister, the ingredients, and quality control.”  Stanley A. Feder, president of Simply Sausage

Post Odyssey Judges Need: Access – Set a Hearing Time – Spontaneity is overrated Copies (Shhhhh!) Compliance with conferral rules Support Template to Adopt or Adapt

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Pretrial Motions

 What a judge does when they are filed or delivered on the eve/morning of trial?  Motion to Postpone  ORE 403  Motions in Limine  Jury Instructions  Objections to Evidence

TECHNOLOGY – it’s not new Conferral Check your Courtroom Contact Court Staff Have a Backup Plan

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TECHNOLOGY – It’s Not New! Test your equipment Exhibits – no surprises Housekeeping hints Practice makes perfect, if ingredients hold up

Juries – Modern Crowd Source Funding

 How to attract them  How to educate them  How to keep their interest  How to get them to spend money  How to make them proud of their investment  How to make them proud of our system of justice

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Questions? Comments?

 ????????????????

Thank You, noble ones!

 The Hon. Mary James, Marion County  March 4, 2016, Skamania Lodge

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23rd Annual Litigation Institute and Retreat 3C–6 Chapter 3D Litigation Practice Tips

The Honorable Donald Letourneau Washington County Circuit Court Hillsboro, Oregon Chapter 3D—Litigation Practice Tips

23rd Annual Litigation Institute and Retreat 3D–ii Chapter 3D—Litigation Practice Tips

1. What decides the case?

A. *Facts. [Followed by who is the trier of fact and distantly followed by the attorneying.]

--Remember: three good witnesses are more important than a good lawyer. Marshal your facts. Get yours in, and keep theirs out. Review Kirkpatrick.

B. Preparation, preparation, preparation.

C. *Listen to evidence. Write down important evidence/pithy comments.

2. Manner of presentation.

A. Style: To thine own self be true. Capitalize on your natural strengths and work to minimize weaknesses.

B: Theme: The Wonderful World of Color.

1) Pick a theme. Paint a picture. (Can be different for opening and closing.)

2) (Can be simple or complex.) e.g. Defendant shall be held accountable; What a wicked weave we do deceive, when we first do deceive; Hell hath no fury like a woman scorned; You can’t handle the truth.

C. Purpose: Persuasion, not argumentation.

1) *A single rifle shot is often more effective than a shotgun blast.

2) Stick with theme. Focus only on evidence relevant to the theme. Do not “make points” for the sake of making points. It is a trial, not a basketball game.

3) Consider planting seeds in the jurors’ minds using devices such as

a) catch phrases

b) alliteration/rhyme—If the glove does not fit, you must acquit: Drunk Driver Dined and Dashed; Crook Crashed the Car.

c) and/or repetition ` 4. Don’t overreach/overreact.

5. Technology (wisely used) is your friend.

D. Argument: If they aren’t listening, they won’t hear you.

1) *Less can be more. TV attorneys give brilliant arguments in 120 seconds.

2) Argument=argumentative. Employ proper level of moral indignation.

3) Start with something interesting. Introduce theme at outset.

4) Plaintiff should save something important for rebuttal.

5) Should be able to give closing argument before trial starts. Put all good things and bad things on one piece of paper.

23rd Annual Litigation Institute and Retreat 3D–1 Chapter 3D—Litigation Practice Tips

23rd Annual Litigation Institute and Retreat 3D–2 Chapter 4 “Skating on the Evidence” (Techniques Taught by Gravity and Time)

Dennis Rawlinson Miller Nash Graham & Dunn LLP Portland, Oregon

Contents Presentation Outline 4–1 Presentation Slides 4–7 Selected Articles from the Litigation Journal ...... 4–13 Eyes Are the Windows to the Soul 4–13 Tips from the Bench ...... 4–14 “A Recipe for Opening Statements and Closing Arguments” 4–16 An Alternative to Mock Jury Trials ...... 4–17 “Don’t Give a Speech—Talk to the Jury” ...... 4–18 Repetition and Skating . . . But Not on Ice 4–19 How to Get Your Point Across in 30 Seconds or Less ...... 4–20 “It’s Only a Matter of Time . . .” ...... 4–21 Personal Credibility ...... 4–22 Direct Versus Cross-Examination: A Study in Contrast ...... 4–24 Direct Examination: An Alternative Approach 4–26 “Spice Up Your Case with Viscerals” ...... 4–28 Unconscious Effective Practices ...... 4–29 Direct Examination of Expert Witnesses 4–31 Effective Cross-Examination (Think of Your Mother) ...... 4–33 Direct Examination: Old Dogs and New Tricks ...... 4–35 American Bar Association Civil Trial Practice Standards (2007) ...... 4–40 Recommended Practices for Civil Jury Trials in Multnomah County Circuit Court ...... 4–94 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

23rd Annual Litigation Institute and Retreat 4–ii Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

TECHNIQUES TAUGHT BY GRAVITY AND TIME

I. PRELIMINARY OBSERVATIONS

A. Trial Theme

1. Examples of Themes

2. How to Develop a Theme

3. Dealing With "Bad" Facts

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Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

B. Techniques

1. Primacy

a. Opening

b. Examinations

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Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

2. Recency

a. Opening/Closing

b. Order of Witnesses

c. Direct Examination

d. Cross-Examination

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Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

3. Use Your Eyes

a. Outline

b. "Riding a Bike" Method

c. Creating a Relationship With Jurors

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4. Repetition

a. Theme

b. Skating/Looping" the Evidence

c. Defining Moments in a Case

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C. Professionalism

a. In the Courtroom

b. Outside the Courtroom

II. MISCELLANEOUS

III. QUESTIONS

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Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

“Skating on the Evidence”

(Techniques Taught by Gravity and Time)

PRELIMINARY OBSERVATIONS

1. Masters of the Art of Persuasion

2. Historically “Persuade in Trial”

3. Skills Can Be Used “Everyday”

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TRIAL THEME

1. Simplify, Simplify, Simplify! 2. Objective: Jury Adopts Theme a) Jury understands b) Jury remembers c) Jury repeats 3. Transform “hairball of complexity" case into a sentence or two a) Universal truth b) Common sense c) 12-year-old can understand

EXAMPLE THEMES

1. Terry Nichols was not there; He was building a life not a bomb

2. Case about a drastic and risky medical test . . . that should not have been performed.

3. Case about an owner, who directed us to build a manufacturing plant, which they did not need.

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Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

HOW TO DEVELOP A THEME

1. Quiet time 2. Easel, butcher paper, or computer 3. Meet with people with whom you think well 4. List the most significant facts as strengths and weaknesses 5. Characteristics of a strong theme a) States a universal truth b) Consistent with the evidence and common sense c) 12-year-old can understand

DEAL WITH BAD FACTS

1. Disclose / keep your theme

2. Change your theme

3. Use against the other side

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PRIMACY

1. Remember best / what we hear first

2. Seize golden moment

3. Grab their attention in the first 20- to 30-seconds

RECENCY

1. Remember almost as well . . . what we hear last

2. Finish on the uptake

3. Place risks in the middle of examinations

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USE YOUR EYES

1. Windows to the soul / do not blunt your power

2. One or two word outline

3. "Riding a bike“

4. Creating a relationship with jurors

REPETITION

1. Do not "over use" your theme . . . but be true to your theme

2. Skating / Looping with important evidence

3. Defining moments in cases

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23rd Annual Litigation Institute and Retreat 4–12 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

SELECTED ARTICLES FROM THE LITIGATION JOURNAL Comments from the Editor: Eyes Are the Windows to the Soul1 Our objective as trial lawyers is to persuade. In our • Finish the point you are on. effort to be thorough and marshal every detail in our client’s • Pause for a split second. Observe your listener’s favor, we often overlook one of our strongest weapons: our reaction (do not dive-bomb into your notes). eyes. • Glance down at your notes. (Do not dawdle there.) It’s been said: • Look up to establish eye contact. “Eyes are the windows to the soul.” • Pause for an instant of eye contact. As we stand before the fact finder, our conviction, credibility, and belief in our client’s contentions are being • Start talking again. judged by what appears in our eyes. Too often, in an effort Similarly, when listening to a witness, we should not to be thorough, we spend our time with our eyes cast down be looking at our notes or our next question, or we will to our notes like an actor or actress reading a script. As make the answer seem unimportant. After asking the anyone knows who has watched an actor read his lines question, we should listen to the answer. Then, and only rather than simply say them, reading is fatal to persuasion. then, after the answer has been given and has registered, In his “Theater Tips and Strategies for Jury Trials,”2 should we look at our notes for the next question. David Ball makes a number of valid and significant points. A number of benefits will accrue from these habits. One of his best points is that reliance on extensive notes Oftentimes we will not need to look at our notes for the next undermines our ability to be a persuasive advocate. The question because the answer will suggest the next question. best opening statements and closing arguments are given Other times, when the witness gives us an answer we do not with few or no notes. The advocate opens his or her soul to expect, we will have LISTENED to it and be able to react the fact finder through eye contact. The eyes of an rather than proceeding by rote to our next question like a accomplished advocate are forever darting from one juror robot. The next time you give an opening statement, throw to another juror, looking for a wrinkled nose, a raised away your detailed notes before you arrive in the eyebrow, or a nodding head that will suggest a need to courtroom. You know your case. Do not cheat yourself and paraphrase, repeat a point, or move on to a different subject. your client by allowing fear, detail, or too much preparation For many of us, trying an entire case without the use of to undermine your ability to persuade. notes of any kind would be impossible (after all, even the best actors and actresses review the script between scenes). For those of us who do use notes, two suggestions may be helpful: 1. Use only skeletal notes. Notes should be limited to a word or at most a phrase that will refresh our recollection of the point to be made. Writing out detailed questions, opening statements, and closing arguments word by word may be helpful as a preliminary exercise, but if used at the time of trial, copious notes make the necessary eye contact impossible. 2. Maintain eye contact whenever words are being exchanged. We should never look at our notes while speaking. We should never look at our notes while listening. We should quickly glance at our notes only when we are not speaking or our witness is not speaking. A little bit of practice can work wonders. When we need to look at our notes, it is best to finish what we are saying AND STOP TALKING. Then we can look down at our notes. We should not start talking again until after we have looked back up from our notes and have reestablished eye contact. As David Ball suggests:

1 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 22, No. 2, August 2003. Reprinted with permission of author. 2 Published in 1994 by the National Institute for Trial Advocacy.

23rd Annual Litigation Institute and Retreat 4–13 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

Comments from the Editor: Tips from the Bench3 U.S. District Court Judge Garr M. King, like the other b. If you must use a video, edit it members of the U.S. District Court for the District of 8. Use summaries of exhibits Oregon, enjoyed an illustrious career as a trial lawyer a. Going through an exhibit page by page with a before commencing his service on the federal bench. At a witness can be boring recent Federal Bar Association luncheon, he shared with the group a number of insights concerning trial practice, b. This depends on the judge which we should all take the time to consider. C. CROSS-EXAMINATION A. OPENING STATEMENT 1. Be cautious; less is more 1. The opening statement is the most important part 2. Keep in mind that jurors generally root for the of a trial presentation because witness, who is seen as the underdog (except an a. The jury knows nothing about the case arrogant or expert witness) b. The jury is alert D. CLOSING ARGUMENT c. It is a great opportunity to persuade 1. Review instructions carefully before closing argument 2. Tell a story 2. Give the jury a road map, telling them how to a. Incorporate facts and issues return a verdict with the jury instructions b. Tell jurors how you are going to help them 3. Walk through special verdict form with jury resolve the case in your favor Example: “Here’s the first question, and here’s c. Remember that jurors are anxious how we satisfied it” i. One juror told Judge King that jury duty 4. Give jurors the numbers of exhibits you want them was “the hardest thing I’ve ever done” to consider ii. Jurors want to do their job well 5. Tie up loose ends iii. Jurors want your help a. You do not need to discuss every bit of 3. Don’t argue evidence or every witness 4. Don’t make statements you can’t prove b. Hammer home your theory 5. Use visual aids 6. Avoid overlong closing arguments In a complex case, illustrate the cast of characters Limit to about an hour 6. Be concise but not terse E. EXPERT WITNESSES 7. Be specific 1. “An expert is a guy from out of town” 8. Build an interesting structure, not just a 2. Experts have questionable credibility with the jury chronological one 3. Judge asks jurors what they think of an expert B. WITNESS PRESENTATION witness; answers may include: 1. Ask simple questions a. “He seems bought and paid for” 2. Save a good strong witness for the end of your b. “His figures were helpful” presentation 4. Good expert = good teacher 3. Do not ask questions more than once 5. Keep your expert under control Jurors often complain that lawyers repeat their Ask questions; do not just turn him loose questions (“Do they think we’re stupid?”) 6. Ask basic questions; explain and define things 4. Avoid cumulative questions and cumulative witnesses 7. Use your expert effectively 5. Be alert to jury’s reaction; read your audience a. Consider having the expert “teach” the jury Are they falling asleep? Looking at the ceiling? b. Consider getting the expert off the stand 6. Remember that jurors like visual aids c. Consider having the expert use a chalkboard and/or charts 7. Avoid videotaped testimony; it bores the jury a. A jury would rather see an edited transcript, with someone reading it aloud

3 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 22, No. 1, May 2003. Reprinted with permission of author.

23rd Annual Litigation Institute and Retreat 4–14 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

8. Prepare visual aids in advance a. Judge King will not allow an expert to write out a visual aid in front of a jury b. Drawing a diagram is okay, but he recommends preparing the visual aid first and having the expert work with it F. DEALING WITH JUDGES AND OPPOSING COUNSEL 1. A judge is like a law student who marks his own examination papers 2. Jurors usually favor the judge in a fight between an attorney and a judge Jurors may favor the attorney if the judge is being unfair or biased 3. Courtesy and professionalism are essential G. JUDGE KING’S TIPS FOR A BALANCED LEGAL CAREER 1. Keep fit 2. Be ethical 3. Take vacations 4. Have many interests 5. Laugh 6. Be creative 7. Don’t take yourself too seriously

23rd Annual Litigation Institute and Retreat 4–15 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

Comments from the Editor: “A Recipe for Opening Statements and Closing Arguments”4 A lot has been written on opening statements and 8. “Talk,” don’t give a speech. closing arguments. Over the course of a career, most of us (Don’t have your opening memorized or write it read “volumes” of material dealing with opening word for word; simply “talk” or “visit” with the statements and closing arguments and attend countless jury or the judge.) seminars covering these trial practice topics. 9. Tell the fact-finder what you want. Ultimately, however, I find that unless I’ve reduced (Make it clear (particularly if you’re a plaintiff) these materials and seminars to short checklists or what it is that you’re asking the fact-finder to do.) abbreviated points (a recipe, of sorts), I run the risk of 10. Start strong and end strong. forgetting what I have learned. I suspect that most of us find that just prior to trial (when we are overworked and sleep- Similarly, each of us should make an effort to deprived) is not the ideal time to be rereading and reduce the points we have learned over time from restudying to perfect our trial skills. On the other hand, if both practical experience and continuing legal we can pick up a quick checklist and review it as we’re education to a checklist of points that can be preparing an opening statement or a closing argument, reviewed as we prepare closing argument. points garnered over the years from experience, reading, B. Example of Closing Argument Checklist and seminars will be less likely to be overlooked. 1. Thank the jury, but “don’t overdo it.” Set forth below are a couple of checklists for your 2. Avoid notes. consideration. I believe that ultimately the most beneficial 3. Use exhibits and testimony transcripts. checklist is the one that each of us develops individually 4. Invite the jury or the court to examine exhibits and reviews and revises over a lifetime of practice rather and transcripts. than one that we find in a treatise or receive at a seminar. 5. Select and review key jury instructions. Thus the checklist set forth below is really more an example of a methodology for your consideration rather than a 6. Argue credibility. specific checklist to adopt. Each of us should, over time, (Discuss why your witnesses are more credible prepare and revise a checklist of points that is suited to our than your opponent’s, but don’t accuse anyone of own individual style. lying.) A. Example of Opening Statement Checklist 7. Establish why your case is important. 1. Theme, theme, theme. (Argue that more is at stake than simply deciding (Select your theme and return to it often.) the outcome of a dispute.) 2. Simplify, simplify, simplify. 8. Fulfilled and unfulfilled promises. (Provide a view of the forest, not a description of (Return to opening statements and demonstrate each of the trees.) your fulfillment of and your opponent’s failure to fulfill promises concerning what the evidence will 3. Capture attention early. show.) (The media correctly recognizes that this needs to 9. Suggest, don’t demand. be done in 30 seconds or less.) (Empower the judge or the jury and suggest why 4. Tell a story with a viewpoint. your approach is more just or fair.) (Think about whether the viewpoint should be 10. Argue inferences. from an omniscient narrator, the position of your client, or the position of your adversary.) (Argue the reasonable and logical conclusions that should be drawn from the evidence.) 5. “Pull the teeth” of your weaknesses. I encourage each of you (if you haven’t already done (If you haven’t done so in jury selection, disclose so) to develop your own personalized checklist and then to your weaknesses before your opponent does it and review and modify it regularly, based on your study and hurts your credibility.) experience. Then each time you prepare an opening 6. The facts, the facts, the facts. statement or closing argument, your recipe (checklist) can (The “facts,” not “argument,” win cases. Marshal be easily used to ensure that the points you have learned the facts that support your theme and story.) over time are not overlooked. 7. Use visuals. (Use charts, a chalkboard, and exhibits to enhance your opening.)

4 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 21, No. 3, October 2002. Reprinted with permission of author.

23rd Annual Litigation Institute and Retreat 4–16 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

Comments from the Editor: An Alternative to Mock Jury Trials5 Most of us recognize the value of using jury trial hair professional with whom we have developed a consultants and conducting mock jury trials to develop trial relationship. I suspect that most of them would be pleased themes, determine any gaps in our cases, and determine to share their reactions to your case themes and give their their strengths, weaknesses, and value. opinions on your case’s strengths and weaknesses. Engaging trial consultants and conducting mock jury (c) Cab Drivers. Similarly, cab drivers can serve as an trials can be expensive. The expense can usually be justified excellent alternative to a mock jury panel. It might cost you only in the most substantial cases we handle. It is difficult, $40 to ride to and from the airport, but most of them would if not impossible, to justify such an expense in a case be pleased to have the mental stimulus of having a case involving $100,000 or less. explained to them and providing you with their reactions Yet there are some alternatives to consider in our trial and opinions. Cab drivers meet a lot of people, listen to a preparation. There are other less expensive ways to lot of radio, and often have a pretty good sense of public determine: opinion. • whether we have selected a persuasive theme. The list, of course, goes on and on. Often your 12-year- old son or daughter would be flattered if you would take 20 • whether we can get our point across in 30 seconds minutes or so to discuss one of your cases with them to or less. obtain their reactions and opinions. Although you may • the strengths and weaknesses of our cases. think that you know what they will say, you often may be • whether we have developed a proper “story” for surprised. our case. Another alternative to mock jury trials is simply to • whether there are “gaps” or “questions” raised by videotape yourself giving a mock opening statement. You our story. can then play this videotape for family members, legal secretaries, or other staff members to get their reactions and • whether we have personalized our story characters. opinions. You will probably find that by watching yourself • whether we have successfully reduced our case to on videotape you will gain certain insights on how to a single persuasive sentence. improve your persuasion and presentation, with or without What are these less expensive alternatives to mock jury the help of others. trials? Every day we have opportunities to spend time with There is no question that jury consultants and mock “regular folks” whose reactions and opinions concerning jury trials can offer a wealth of information to improve our our cases may well be as helpful as those of the jury ability to persuade. But don’t overlook the opportunity to consultant or those of a mock jury panel. Many of these use less expensive alternatives. people are available to us at little or no expense. (a) Gas Station Attendant. Next time you stop to get fuel for your automobile, select a time of the day that is early or late enough that the gas station will not be busy. Service stations providing 24-hour service are ideal in providing these opportunities. As the gas station attendant is filling your automobile’s tank, get out of your car and ask his or her indulgence in listening to the facts of a case you are handling and providing you with his or her reactions to it. I believe you will find that most attendants are pleased to have the mental stimulus and are flattered by your interest in what they think. If you go to a service station regularly and try this out, you can easily develop a relationship with one or two service station attendants who will look forward to discussing your next case with you. (b) Barbers and Hairstylists. Barbers and hairstylists can sometimes be a good barometer of public opinion. Once a month or so, most of us sit for 30 minutes or more with a

5 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 21, No. 2, July 2002. Reprinted with permission of author.

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Comments from the Editor: “Don’t Give a Speech—Talk to the Jury”6 Most of us from time to time have heard the advice, “Don’t give a speech . . . talk to the jury.” But what does it really mean? Well, most of us finally figure it out after 20 trials or so, but I have always been puzzled why it seems to be such a secret. The simple explanation is that we use our eyes differently when we give a speech from the way we do when we talk to a jury. When you give a speech on a stage behind a podium to a large group in an auditorium or a concert hall or a ballroom, your eyes go from one end of the audience to the other and back and forth. You are giving a speech. This is the way we have been taught to give speeches. This is the way politicians do it. When we are talking to a panel of jurors, however, if our eyes dart from one end of the room to the other and back and forth, the power of our eyes is diluted. Moreover, we give the impression that we are “giving a speech” or that our remarks are simply memorized. How do we transform this “speech giving” into “plain talk” to the panel? Really, it’s quite simple. Concentrate on speaking with one juror at a time. Create a relationship. Look at one juror while you make a single point, then think to yourself “thank you,” and then move on to the next juror and make your next point. As you can see, this will cause your eyes to go from one juror to the next but to move only after you’ve completed the point you are making. Needless to say, this doesn’t mean that you start with juror number 1 and end with juror number 12. It may well be that the first juror who is looking up and makes eye contact with you is juror number 4. After you finish making your point with juror number 4, you may find that the next natural juror to make eye contact with is juror number 8...and so on. Inevitably, some jurors are less comfortable with full eye contact than others. If you have a juror who is not comfortable with the eye contact, simply look at that juror pleasantly and then move away a little bit more quickly than you would with the others until the juror gets more comfortable with your gaze. Don’t give a speech; talk to the jury. Now that the secret is out, most of us can understand why most politicians do not make good jury-trial lawyers.

6 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 20, No. 1, April 2001. Reprinted with permission of author.

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Comments from the Editor: Repetition and Skating . . . But Not on Ice7 By the time we graduate from law school, we realize The first technique is to repeat the answer in your next that the most powerful techniques for trial practice are question. “After you had the three beers. . . .” primacy (we remember best what we hear first), recency Skating, however, goes further; you can dwell (remember what we heard last), and repetition. Repetition on that answer by asking a series of questions that to a degree is the stepsister of the other two techniques. forces the same answer to be repeated over and over Perhaps because it is overused or misunderstood. again until you are sure the fact finder (and even Make no mistake about it, however—if used correctly, sleepy juror number 6) has heard it and will it is powerful. remember it. Here’s a short example based on the 1. Misuse of Repetition answer that the defendant had three beers before the accident: When the videotape portraying the police beating of Rodney King was played for the 35th time at trial in the “Q: Were the three beers that you had light beers or original case before the jury in Simi Valley, California, the dark beers? jury was so calloused from hearing and seeing it over and “A: Light beers. over again that the initial reactions of revulsion and horror “Q: Were the three beers that you had from the tap had drained away. Repetition of the same powerful or from a bottle? evidence over and over again can dilute its impact and even “A: From a bottle. result in its having an opposite impact. “Q: Were the three beers that you had imported or As a result of this phenomenon, we should be careful domestic? to use strong visceral evidence sparingly. The first time tears come to the plaintiff’s face, the jury is moved by them. “A: Domestic. By the eighth or ninth time, the tears may well have the “Q: The three beers that you had—did you drink opposite effect. them with a glass or without a glass? Save, savor, and carefully dole out your powerful “A: I drank them out of the bottle. visceral evidence. This is not where the trial technique of “Q: The three beers that you had—did you drink repetition is effective. them slowly or did you drink them fast? 2. Repetition of Theme “A: I drank the first fast and the last two slowly.” In contrast, however, when you have finally boiled You know, the witness knows, and the jurors know that down all your evidence, the facts, and your theories into a you don’t particularly care whether the three beers were simple one-sentence theme, don’t be afraid to repeat that light beers, domestic beers, beers in a bottle, beers served theme throughout the trial. with a glass, or beers drunk fast or slowly. In fact, you have For instance, if the theme of your case is that the known all this information for some time as a result of defendant will not pay for the new plant that your client discovery. But what you do care about is “skating” over that built for it because demand has fallen off for its product and great evidence, time and time again, until you are certain it doesn’t need the plant, don’t be afraid to ask half a dozen that repetition will make it memorable. witnesses about the undisputed loss of demand. You are skating . . . but not on ice. Here repetition can be helpful and reinforce your message to the fact finder. 3. Skating Skating is the trial technique that enables you to dwell on, repeat, and savor great testimony that helps your case. For instance, in a negligence case against a defendant who has caused an automobile collision, you may discover on cross-examination that the defendant had three beers just before the accident. This is evidence worth dwelling on, repeating, and savoring. Don’t run the risk of hiding this piece of evidence in a long-winded narrative answer by one witness or limit this evidence to one short question and answer.

7 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 19, No. 1, April 2000. Reprinted with permission of author.

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Comments from the Editor: How to Get Your Point Across in 30 Seconds or Less . . . 8 We find ourselves in an age of fast food, fast • Use imagery to create a picture. transportation, and fast communication. Scientific • Tell a story. advances are conditioning us to expect instant communication, instant responses, and instant gratification. • Personalize the story characters (your client). The business world recognizes that a businessperson • Add emotional appeal and idealism. who cannot get his or her point across in 30 seconds or less • Be prepared, but don’t memorize. will not be persuasive. When we rise to our feet in court, • Care about what you are saying and use your voice put pen to paper, or key information into a computer, we and gestures to express that care. should be guided by the same principle. • If you wish to emphasize something . . . speak I recently read How to Get Your Point Across in 30 softly. Seconds or Less, by Milo O. Frank, one of America’s foremost business communication consultants, and found • When you want the attention of the fact-finder . . . that it echoed what most of us learn over the course of a pause. litigation career about the value of brevity and clarity. • Start and end on a high note. Attention Span Conclusion Frank notes that the human mind has an attention span It is not particularly surprising that effective of approximately 30 seconds. Try to concentrate for a communication, whether in the courtroom or in the moment on a single object, such as a pencil. You will find boardroom, follows the same principles. This realization that in about 30 seconds your mind begins to wander unless may suggest to some of us that we ought to attend fewer additional action recaptures your attention. This simple test litigation seminars and more effective-communication corroborates what television, radio, and newsprint seminars. advertisers have known for years: You need to capture someone’s attention, get your message across with high impact, and then stop within 30 seconds. Time a few commercials on television. I believe you will find that the most effective ones are those that last 30 seconds or less and follow the methodology set forth below. Courtroom Application I have been told and have come to believe that no legal argument that cannot be explained to a colleague in a 3- minute elevator ride will be successful. And if you don’t catch that colleague’s attention in the first 30 seconds, the other 2½ minutes will be wasted. One of the most challenging tasks of our practice is to reduce complex, complicated cases to brief, clear, concise contentions that persuade. The first 30 seconds are the most crucial. Methodology Set forth below is a brief summary of the points made by Frank in his book. For the most part they are the same points that trial-technique advocates preach and that experience confirms are valid. • Identify your objective. • Reduce your objective to a single persuasive sentence. • Identify an approach to your objective that will take into consideration the needs and interest of your listener (fact-finder). • Ensure that each point directly advances your objective and relates to the listener.

8 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 18, No. 2, July 1999. Reprinted with permission of author.

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Comments from the Editor: “It’s Only a Matter of Time . . .”9 The value of time is not taught in law school. Instead, not be wasted on preliminaries, procedural and we are taught to be careful, detailed, and thorough. evidentiary foundations, and “warming up.” Somewhere in our quest to be the best lawyer we can be, 4. Objections and courtroom interruptions should be we tend to lose our layperson’s recognition of universal kept at a minimum (object only if you are right and if truths like “Time is our most valuable possession.” it is crucial). Experience has taught me that time is the most valuable 5. Cross-examinations should be brief. (Making any possession of a fact finder. Honor this principle, and you more than your three strongest points may dilute the will succeed. Squander the fact finder’s time, and you will impact of the examination.) be punished. 6. Sidebar conferences and requests for conferences A few months ago in this column, I evaluated a book with the court (causing the jury to recess) should be 10 on trial strategy entitled Sponsorship Strategy.1 One of kept to a minimum. the principles of the book is worth repeating. The more of Next time you are trying to determine how long to a fact finder’s time you take, the better use you should make make your direct examination, think about how you enjoy of it. Otherwise, the use of that time will be held against being caught in a traffic jam, waiting in line at a grocery you. store, or circling the block looking for a parking place. Your A case in point is the direct examination by the direct examination should be no longer than you wish to prosecution in the O.J. Simpson case of the prosecution’s engage in any of these activities. pathologist. The direct examination lasted six days. The Similarly, when you prepare cross-examination, think cross-examination conducted by Robert Shapiro of the about how long you can comfortably stand on one foot. In defense team was brief, creating a stark contrast Shapiro’s fact, perhaps some trial judges should start forcing us to cross-examination included the admission by the conduct our cross-examinations while standing on one foot. pathologist that after six days, all he could really tell the jury was that: I suspect you will find that if you force yourself to be brief and condense your case, you will consciously or 1. The victims had bled to death. unconsciously separate the wheat from the chaff and create 2. They had been stabbed with a sharp instrument, a presentation that is not only brief, but also more probably a knife. “powerful and clear.” 3. The murder weapon was probably a single- rather Make good use of the fact finder’s time. You will be than a double-edged knife. rewarded for your effort. We can all imagine what the jury (which several times nearly mutinied because of the length of the trial) thought about a direct examination that lasted six days, but that resulted in only three pieces of information. Under sponsorship strategy, the prosecution’s use (“waste”) of the jury’ s time will be, and was, held against it. The lesson here for the rest of us is a simple one. It is a lesson recognized by the advertising industry. In our fast- paced world, advertisers provide us with information by “sound bites” and pictures that change seemingly every “nanosecond.” The message is be “brief, powerful, and clear.” Applying this to a trial, several suggestions become apparent: 1. Use as few witnesses as possible. 2. Make your direct examinations “brief, powerful, and clear (simple).” 3. Don’t waste the first 60 seconds of each opportunity you speak. These golden moments should

9 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, March 1996. Reprinted with permission of author. 10 Robert H. Klonoff & Paul L. Colby (Charlottesville: The Michigan Company 1990) (see October 1994 issue of Litigation Journal).

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Comments from the Editor: Personal Credibility11 It’s not unusual for a client or a referral source looking not make us likable. Instead they make us look weak and for a trial lawyer to say that he is looking for a lawyer who our client’s position suspect. is “mean, aggressive, and hostile.” My personal For example, when Marcia Clark prosecuted O.J. observation has been that “mean, aggressive, and hostile” Simpson for the murder of Nicole Simpson, she apologized lawyers tend to receive the same in kind and usually end up in opening statement for prosecuting a popular high-profile costing their clients substantial amounts in unnecessary football star. If in fact, as the jury presumes, she knows the attorney fees and ultimately alienate the fact finder. “real and whole” truth (namely, that Simpson had Perhaps we sometimes mistake “meanness, committed the brutal cold-blooded murders), why would aggressiveness, and hostility” for “personal credibility.” she be apologizing? There is no question that every client and referral Don’t Distance Yourself from the Facts source should be looking for a lawyer who will put his or Similarly, Judge Fine criticized Robert Bennett’s her “personal credibility” on the line for the client. Such a recent defense of President Clinton to the charges of lawyer unleashes his or her personal belief and conviction Kathleen Willey. In response to some rather graphic to support the client’s position. allegations by Ms. Willey on the 60 Minutes television Ina recent seminar given by Wisconsin Federal news program concerning improper sexual advances by the Appellate Judge Ralph A. Fine, Judge Fine emphasized the President, attorney Bennett was careful not to place his importance of the lawyer’s personal credibility in a jury personal belief and conviction on the line. Instead he told trial. the television reporter what he understood to be “President The Lawyers Know the Real Truth Clinton’s version of the facts.” Hiding behind what he referred to as his “client’s account” of the facts instead of Judge Fine explained that jurors are convinced that the responding clearly and directly that his client was not guilty lawyers know the “real and whole” truth (regardless of the and he would prove so was fatal to his persuasiveness. reality of whether they do or don’t) of the case that they bring to trial. Credibility Must Be Consistent with the Facts and Common Sense It is not surprising that Judge Fine comes to this conclusion. After all, lawyers spend their time in front of Needless to say, a lawyer cannot place his unqualified the jury objecting to the introduction of evidence. personal belief and commitment behind a client’s position Obviously, they wouldn’t object if the information they unless it is believable. Personal credibility must be were trying to keep out was not important and hurt their consistent with the facts and the jurors’ common sense. The case. Based on these objections, the jurors conclude that the lawyer must first analyze the facts and adopt a version of lawyers are attempting to keep them from knowing “the the facts and a theme that is consistent with them and with real and whole” truth, which the lawyers alone know. common sense. Having done so, the lawyer’s most Similarly, lawyers regularly have “secret” conferences with persuasive tool for adoption of the lawyer’s version of the the judge (while the jury is excused) and whispered sidebar facts and theme is the lawyer’s credibility. conversations with the judge. We all learn at an early age Prohibition Against Announcing Personal Belief that it is impolite to whisper in the presence of others. It has long been recognized that even in closing Again, the natural conclusion of the jurors is that something argument lawyers are prohibited from announcing their is being kept from them. The lawyers know the important own personal belief concerning the truth or untruth of the facts that the jurors do not. facts or witnesses’ credibility. See, e.g., Fowler v. State, Personal Credibility 500 SW2d 643 (Tex Crim App 1973); People v. Bain, 489 Once one concludes that jurors assume that each of us P2d 564 (Cal 1971). Why? Because it is so powerful. One knows the “real and whole” truth, the most effective way to can demonstrate one’s personal belief, however, without be persuasive is to be zealously committed to one’s client’s announcing it. position. Anything less suggests that the lawyer doubts the One does so not by apologizing for prosecuting O.J. client’s position. Simpson but by stating unequivocally that “I will prove to Judge Fine uses a couple of examples to demonstrate you that this man is a murderer.” One does so not by hiding when “personal credibility” is present and when it is not. behind “the President’s version of the facts” but by stating that “the President is innocent of the charges, and when the Never Apologize time is right we will prove it.” Judge Fine urges trial lawyers never to apologize for their client’s position. Apologies do not curry favor and do

11 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 17, No. 3, October 1998. Reprinted with permission of author.

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Conclusion Next time someone approaches you and tells you that he or she is looking for a trial lawyer who is “mean, aggressive, and hostile,” I suggest that you encourage him or her to reconsider. What he or she is really looking for is a trial lawyer who will place his or her own personal credibility on the line to support his or her client.

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Comments from the Editor: Direct Versus Cross-Examination: A Study in Contrast12 The comparison of the general rules for conducting to your first challenging information questions and finally direct examinations and cross-examinations exposes a your hostile questions to the cross- examination witness. common theme. Whatever the rule that applies to direct 2. Indirection. examination, usually the directly opposite rule applies to During direct examination, in the interest of assisting cross-examination. your witness and drawing a clear, easy-to-follow picture for This contrast is not surprising. After all, direct the fact finder, the examiner works hard to make it clear examinations generally consist of eliciting helpful where he or she is going. In contrast, on cross-examination, information from cooperative witnesses whose credibility making it clear to the witness where you are going will only we are attempting to bolster. On the other hand, on cross- encourage the witness to become evasive, hostile, and examination we are generally attempting to elicit helpful argumentative. information from an uncooperative witness whose For instance, if you are trying to make the point that the credibility we are attempting to impeach. witness should have understood the contract or letter the A review of six general rules of cross-examination and witness read, and you ask the question directly, you will comparing those rules with comparable rules for direct probably not get the answer you want. On the other hand, examination will demonstrate the contrast. you can achieve the same goal by indirection. Before 1. End strongly, start slowly. concentrating on the simple language of the agreement or A good direct examination, redirect examination, or letter that the witness has admitted receiving and reading, recross-examination should start and end strongly (taking you can establish the witness’s extensive experience, advantage of the persuasive techniques of primacy and achievements, and laudable business practices through a recency). Similarly, cross-examination should finish series of questions with which the witness will have to strongly ending with the traditional “zinger,” a point that is agree and that will lead to only one conclusion concerning a guaranteed winner in that it is absolutely admissible, is the witness’s understanding of the agreement or letter. central to your theory, evokes your theme, is undeniable, Questions that could be asked to set up the indirection: and can be stated with conviction. In direct examination the 1. You have more than 30 years of experience same kind of impact can be made with a “zinger” in the negotiating contracts, don’t you? opening line of questions. 2. You’ve been highly successful in negotiating In contrast, however, a cross-examination should successful contracts over your career? usually not begin with a “zinger.” Why? Because 3. You regularly hire lawyers to assist you in employing an initial “zinger” will alienate the cross- reviewing important documents? examination witness and make it impossible to draw from that witness helpful points to generally bolster your case 4. To the extent that you don’t review important (before turning to hostile questions and ending with a documents, you have someone on whom you can rely “zinger”). review them? Starting slowly on cross-examination will allow you to 5. You insist that important and crucial points that are take full advantage of information available from the cross- discovered in documents are brought to your attention? examination witness before you allow your relationship 6. Itis this kind of detailed, cautious, and deliberate with him or her to deteriorate into alienation. procedure that has led to your success? First, you can elicit friendly background information that is Having established a general practice of careful reading not threatening, but that may support your theory and of documents, while at the same time flattering the theme, such as the achievements and extraordinary training witness’s achievements and work habits, will allow you by of a defendant who you are attempting to show knew full indirection either to obtain the admission or to frame a well what he or she was doing at the time of the question concerning understanding of the agreement or complained-of conduct. letter that will make apparent the answer you should have Second, after exhausting the friendly information, you gotten. If you had flagged in advance where you were going can ask questions to build the value of your case by and why you were asking the background questions, the providing affirmative information that will fill in gaps and result might have been quite different. will be more persuasive coming from an adverse rather than 3. Details first. a friendly witness. Often in direct examination the most effective Finally, uncontroverted information that is well procedure is to cover details only after the witness has documented or well settled can be solicited before resorting described the “action” of his or her recollections. Put

12 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 17, No. 1, March 1998. Reprinted with permission of author.

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differently, it is generally prudent not to interrupt the action examination is often the opportunity for the cross-examiner of the witness’s story on direct examination with detailed to argue his or her themes or theories by asking questions questions about distances, thought processes, and the answers to which are often irrelevant. By raising emotional reactions until the action has been told and impeaching, contrasting, and contradictory points, the completed in a series of frames where each point adds an examiner brings attention to himself or herself and thereby additional action step and captures the fact finder’s exposes the weakness of the recently conducted direct attention. examination. In contrast, on cross-examination the details must be As with all rules, there are always exceptions. When in elicited initially so that you can use them to “herd” and doubt, however, we may do well in cross-examination to “corral” the witness to provide you with the admissions you simply conduct ourselves in a manner opposite to how we need. Until the factual background has been laid by the conduct ourselves in direct examination. adverse witness that limits the routes of escape and explanation, cross- examination is often ineffective. 4. Scatter circumstantial evidence. In argument and on direct examination, assembling circumstantial evidence often makes the contention of the proponent persuasive. If the contention of the proponent is that someone was late for an appointment and therefore negligent in his or her driving, assembling circumstantial evidence about the importance of the appointment, the time of the appointment, the time of the accident, the speed of the car at the time of the accident, and the conduct after the accident, including an immediate phone call to the location of the appointment, supports the persuasiveness of the contention. In contrast, on cross-examination assembling circumstantial evidence to support a contention will make the contention obvious to the adverse witness and result in encouraging that witness to be evasive, hostile, and argumentative. Thus the circumstantial evidence points should be separated and scattered so that they are obtained either from different witnesses or at different points in the examination so that your ultimate objective and contention is not obvious. 5. Short questions and short answers. During direct examination the examiner strives for short questions and long narrative answers by the witness. This allows the attention of the fact finder to focus on the witness, not the examiner. Open questions are used. The witness is left unfettered to improve his or her credibility. In contrast, allowing the adverse witness to launch into long answers and explanations will doom the cross- examination. The questions should be not only short, but also closed-ended to control and limit the adverse witness’s response. By inching along and adding only one fact at a time, the examiner can control the adverse witness and give the adverse witness little room for argument and evasion. 6. Attention on the cross-examiner. As referred to above, during classic direct examination, the examiner attempts to place the attention of the fact finder on the witness. The examiner simply shepherds the witness in telling his or her story in a natural, credible, and easy-to-follow manner. In contrast, on cross-examination, the attention should be on the cross-examiner. Cross-

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Comments from the Editor: Direct Examination: An Alternative Approach13 Traditionally, the techniques employed in direct examination? Shouldn’t a lawyer be doing the “rowing” examination and cross-examination are directly opposite. (work)? For instance, in direct examination, the examiner In contrast, under the alternative approach, the lawyer attempts to place the attention of the fact finder on the takes control and does the work. The witness is asked a witness. The witness is given free rein and encouraged to series of short questions to each of which he gives an tell his or her story in a narrative manner with limited answer of only a word or two and in no event any longer guidance from the examiner. than a sentence. The lawyer then leads the witness to the In contrast, on cross-examination the attention should next point. The witness can now relax. be on the cross-examiner. The cross-examiner argues his or Employs the Techniques of Persuasion. her themes or theories by asking questions, the answers to If the lawyer does the work and coaches the witness to which are often irrelevant. The cross-examiner is really give short answers, the lawyer has a full array of persuasive arguing his or her case through the “window of the adverse techniques available. First, repetition on the most important witness.” The emphasis is on controlling the witness and, and damaging points; the direct examiner can repeat a point by raising impeaching, contrasting, and contradictory several times by rephrasing the question to ensure that it is points, exposing weaknesses in the recently conducted remembered by the fact finder. direct examination of the witness. (See Direct Versus Second, the lawyer can remove from the direct- Cross-Examination: A Study in Contrast, Lit J, Mar. 1998, examination testimony tangential, irrelevant, and side at 3.) points that clutter up the information the fact finder needs A number of respected trial practitioners and trial- to receive. Third, the lawyer can, by controlling the witness, technique teachers are challenging this traditional make the arguments to the jury that are available through approach. They contend that the direct examination should the direct-examination witness. Similar to cross- be tightly controlled by the examiner, that the direct- examination, the examiner can argue the case through the examination witness should be given little or no leeway, “window” of the direct-examination witness. and that the attention of the fact finder during direct These techniques are demonstrated [below]. examination should be on the examiner, not the witness. They believe that like cross-examination, direct Allows the Examiner, Not the Witness, to Be the examination is an opportunity for the examiner to argue his Salesperson. or her case “through the window of a witness.” In traditional direct examination, it was up to the Set forth below are some of the reasons why this alternative witness (whether a fact or an expert witness) to be approach to direct examination is gaining favor. persuasive—to be the salesperson. At least in my experience, most fact finders are suspicious of fact or expert Alternative Approach to Direct Examination. witnesses who appear to be “salespersons.” Under this alternative approach, the witness on direct In contrast, the fact finder expects the lawyer examiner examination is never allowed to answer any more than a to be a salesperson. As a result, if the lawyer argues through sentence. This allows the examiner to do the work and the direct-examination witness and the witness simply control the examination. It limits the amount of “each bite” provides short, accurate, and thoughtful answers, the of information that is given to the fact finder, improving the resulting argument is that of the lawyer. The witness’s possibility of understanding. Moreover, it allows the credibility is not undercut or tainted by the witness’s active examiner to take advantage of the additional benefits effort to sell the point. discussed below. A Sample Examination for Your Consideration. Removes Pressure from the Witness. Two of the proponents of this alternative approach to Under traditional direct-examination techniques, the direct examination are Judge Herbert Stern (who will be witness is placed under a tremendous amount of pressure. speaking at the litigation retreat at Skamania Lodge in He is told that he will be asked, “What happened?” The March) and Judge Ralph Adam Fine. One of Judge Fine’s witness is then expected to tell his story in the way that is examples of the effectiveness of this technique is taken most persuasive, articulate, and memorable. The witness is from the novel Runaway Jury, by John Grisham. told to “be sure to cover this, be sure to cover that, and don’t forget to say this . . . and by the way, you cannot use any In the novel, a turncoat former employee of a tobacco notes.” company is testifying about a memorandum that went to the president of the company, which has since been destroyed Is it really fair to place all this burden on the witness? by the tobacco company (thereby overcoming the best Is this really the most effective approach to direct

13 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 18, No. 1, March 1999. Reprinted with permission of author.

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evidence rule problem). The examination follows the it’s even answered. Why? Because the answer is compelled traditional method of having the witness do the work. by common sense. Q: What was in the memorandum? One of the advantages of arguing the case through a A: I suggested to the president that the company witness not only on cross-examination but on direct take a serious look at increasing the nicotine levels examination is that the fact finder knows the answer before in its cigarettes. More nicotine would mean more it is given. An answer that the fact finder arrives at on his smokers, which would mean more sales and more or her own regardless of the witness’s answer is an answer profits. that will not be subject to impeachment by your adversary. The question and answer are powerful. But not as Summary. powerful as they could be if the lawyer was doing the work. We all have plenty to do and think about at trial. With a single question and answer, there is always the risk Perhaps that is why allowing the witness to do the work on that the fact finder will be distracted for the moment and direct examination is so attractive. miss or misunderstand the answer. In any event, next time you conduct a direct Now, here’s a sample of the same direct examination examination at trial, you may want to consider this where the examiner does the work, limits the answer of the alternative approach. You may find that the rewards from witness and argues the important points to the fact finder this technique far outweigh the detriment of the extra work. “through the window of the direct examination witness.” Q: Did you read the third paragraph of the memorandum? A: Yes. Q: What was the subject of the third paragraph? A: Nicotine. Q: What about nicotine was discussed? A: The nicotine levels in cigarettes. Q: Did the paragraph suggest that the nicotine levels be increased or decreased? A: Increased. Q: If the nicotine levels were increased, would that have any effect on anything? A: Yes. Q: What? A: The number of smokers. Q: Would increasing nicotine mean more smokers or fewer smokers? A: More smokers. Q: More smokers than if the nicotine levels were not increased? A: Yes. Q: Would this mean more or fewer sales? A: More. Q: Would this mean more or less profit for the company? A: More. Q: Would the increased profits be substantial or insubstantial? A: Very substantial. Under the second example, with a lawyer doing the work, it would be hard for a fact finder to miss the answer or miss the point. In fact, after the first couple of questions, the factfinder knows the answer to the next question before

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Comments from the Editor: “Spice Up Your Case with Viscerals”14 Our ultimate goal as trial attorneys in a jury case is to 3. Finding Viscerals. provide at least some of the jurors with arguments and Finding and stockpiling viscerals for use in cases is fun evidence they can use to support our client during jury and easy. You can read the masters—like Shakespeare— deliberations or in a close court case to appeal to a judge’s consciously noting viscerals. sense of equity to influence her decision. In either case, On the other hand, viscerals are ever-present in modem however, in order to make a juror a potential advocate for culture. Watch a movie. Watch television. Watch MTV. us or to appeal to a judge’s sense of equity, we have to The script writers fashion every scene, episode, and create emotion. The juror or the judge must want to support passage around the full human experience. They are forever our view. reaching for our emotions. What will make us cry? What “A want” is an emotional, not an intellectual, process. will make us laugh? What will disturb us? What will It is usually effectively initiated by the use of viscerals. pleasure us? What will make our heart beat faster? 1. What Is a Visceral? Each of us should train our minds to be sensitive to and Viscerals are words, descriptions, or other conscious of the use of viscerals. To gather them for future communications that appeal to our primal instincts. They case use. To evaluate cases with respect to visceral appeal to our physical reactions as humans. There’s a wide potential. Then with every new case, every new witness, range of emotions and an even wider range of viscerals that and every piece of evidence, we should search our catalog trigger them. of viscerals for the matching and appropriate visceral. Examples of viscerals are snakes, fingernails across a I believe that with a little bit of awareness and a little chalkboard, paper cuts on a tongue tip, a rat scurrying bit of work, viscerals can help each of us at least to begin across a warehouse floor, blood, anger, thoughts of home, approaching the persuasive power of the masters. a child’s laughter, revenge, confrontation, and so on. 2. Using Viscerals The use of a visceral in a trial theme to punctuate an opening statement or witness examination or to persuade in a closing argument separates the masters from the practitioners among trial lawyers. A master draws word pictures that evoke emotion. A master does not say: “He injured his arm.” but says: “It sliced through his skin into the tendon.” The first description is mere information. The second employs viscerals that draw attention, evoke emotion, and persuade. Viscerals are often created by analogies, one of the lawyer’s most potent tools. For instance: “She felt like she was drinking her own blood.” or “It was as dark and silent as a sealed tomb.” or “He had a smile as inviting as a roaring fire on a winter day.” The writers of the classics all recognized and employed the power of viscerals. Shakespeare often has 10 or 20 viscerals in effect at once. Shakespeare’s viscerals demand attention. If your opponent persuades with dry logic and information and you build your own logic on a visceral framework, your advantage will be apparent.

14 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, July 1997. Reprinted with permission of author.

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Comments from the Editor: Unconscious Effective Practices15 Anyone who has prepared to run a marathon or has “You didn’t leave your home that morning until become a serious bicyclist knows that you tend to become 8:28 a.m.?” introverted, introspective, and egocentric. For instance, you That phrasing leaves the witness no time to think before worry about whether you’ve placed sufficient oil between answering the question. The factfinder will notice any your toes to avoid chafing and whether you’ve been able to unusual hesitation, and it will cause suspicion. In contrast, remove an additional two ounces of weight from your if the point of emphasis were placed in the middle of a bicycle. So an effective trial practice requires great longer complex sentence, the witness would have several attention to detail and at times what must seem to be an seconds to think of a response before answering. A less introverted, introspective, and egocentric approach to the effective question would be: practice. “You didn’t leave your home until 8:28 that Discussed below are a few effective practices that most morning, and you know that is the case because as of us regularly employ unconsciously. In an effort to you got into your Ferrari you looked at the clock on improve our skills of persuasion and to enable us to pass the dashboard, which lights up when you close the those skills on to those who will follow us, it makes sense driver’s door?” from time to time to stop and analyze what good trial (c) Direct examination. practitioners do automatically. Just the opposite practice should be undertaken with 1. Impact points in questions. your own witness on direct examination, particularly if the (a) Generally. witness is nervous. You want to give the witness as much Impact points in questions can have a substantial effect time as possible to answer questions and not present the on the persuasiveness of the presentation of evidence. impact point at the last second unless you are sure the Clarity and emphasis are generally improved by witness is ready to handle the question. For instance, if you placing your impact point near the end of a sentence. The want to know what the witness saw on the morning of May impact point is the word or phrase that you are trying to 14, 1998, at the comer of the intersection, you might ask: emphasize, the point the questioner is attempting to draw to “What did you see when you arrived at the the factfinder’s attention. For instance, if the questioner is intersection after leaving your home and arranging trying to draw to the factfinder’s attention the time of day with your wife to have her run the errands you had (perhaps because the witness was late for work, which originally planned to run?” begins at 8:30 a.m.), the questioner might ask: (d) Greater emphasis for impact points. “You didn’t leave home that morning in your Impact points can be further emphasized by a number Ferrari until 8:28 a.m.?” of other speaking techniques, including: On the other hand, if the point to be emphasized is the • Change of pace kind of car the witness was driving, the question would be asked: • A pregnant pause before the emphasis point “The car you drove that morning to work was a • Change in the tone of your voice Ferrari?” • A slight nod of your head The impact point belongs as close to the end of the • Turning your body toward the factfinder and sentence as you can place it without twisting your syntax pausing because once you have communicated your point of The number of means available to draw emphasis to emphasis the listener tends to stop listening. Put another your impact point are limited only by your imagination. The way, the purpose of your sentence is to get to your impact lesson is to stop and consciously determine the “point” you point. Once you have gotten to it, end the sentence. Keeping are trying to make with each question and then deliberately impact points in mind generally assists the questioner in structure the question to increase or decrease the “impact” shortening his or her sentences and avoiding rambling, of the point. complex sentences that often obscure the very point that the 2. Use of the eyes. questioner is attempting to make. One’s eyes are often the most powerful means of (b) On cross-examination. communicating. Actors and actresses know that credibility Particularly on cross-examination the impact point and persuasion arise only when you put aside your script should be at the end of the sentence, leaving the witness no and look at the other actors and actresses with whom you time to think. Returning to the question: are communicating. Similarly, seasoned practitioners use

15 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 17, No. 2, July 1998. Reprinted with permission of author.

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their notes to only a limited degree as they realize that 4. Conclusion. looking at the witness or looking at the factfinder is too All of us are faced with two challenges as we attempt powerful a technique to be lost by dependence on a script to master the art of persuasion. First, finding the time to Impact points again can be emphasized with the use of prepare with the sufficient detail to be sensitive to issues the eyes. If a particularly important question is being asked like impact points, use of the eyes, creating images, and of a witness being cross-examined, why not turn to the using our passions. Second, stopping when we see an factfinder and engage the judge’s or jury’s eyes as you ask accomplished practitioner employing these methods and the question and make your impact point. If necessary, analyzing what was done, how it was done, and how it ignore or turn your back on the cross-examined witness. should be modified to work best for us. All of this Your eyes draw the factfinder’s attention to your point and inevitably leads to introversion, introspection, and subtly communicate that this is a point of importance and egocentricity. emphasis. 3. Images. The most accomplished trial lawyers do not speak words; they paint images. They use language to draw a word picture, which the factfinder can easily imagine based on his or her experience. Often the specific technique is to use an analogy or a simile. For instance, your expert witness should be prepared well enough to describe the “unanticipated outward vector of lateral stresses on the fission chamber’s brittle ceramic containment wall” by an analogy that likens the action to “a rock smashing through a living room picture window.” The factfinder is able to cut through the scientific jargon and understand the analogy and the point. Each of us can easily imagine a rock smashing through the picture window of a home. Although each of us may be envisioning a different living room, a different picture window, or a different size of rock, the image is nonetheless vivid and allows the witness and the witness’s lawyer to have a private dialog with each of the listeners. During the course of a hearing or a trial, a memorable image can often be drawn or may even arise as a matter of happenstance. For instance, the witness whose cellular phone rang in his briefcase while he was testifying might provide a rare moment of comic relief. In closing argument, the image of that witness can best be resurrected not by describing the witness’s background, but by simply reminding the factfinder of the memorable incident: “Remember Mr. Brown, the witness whose cell phone rang while he was on the stand?” Immediately the factfinder will have in mind the image of the witness to whom you are referring. Similarly, if you want to refer to the expert’s testimony about the vector and stresses, don’t repeat the technical analysis; simply remind the factfinder of the expert who testified about the interaction of the stresses being like “a rock smashing through a living room picture window.” The beauty of images is that not only do they communicate powerfully in the first place, but also, once an image has been established, the repetition of that image can immediately bring to mind the witness, the result of the experiment, or the point to be made.

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Comments from the Editor: Direct Examination of Expert Witnesses16 One of the most important but often least effective specific case. An effective discipline is to limit the expert’s components of a trial presentation is the direct examination qualifications to no more than five minutes or no more than of expert witnesses. It is unusual these days when a trial or 10 to 15 questions (depending on the expert and the case). arbitration presentation does not include direct examination Consider covering only the vitae’s highlights and select of at least one expert. Completing such a direct examination those highlights for their relevance to the opinion in the is not difficult, but it is rarely done effectively and particular case. persuasively. 3. Lead with the Opinion Set forth below for your consideration are some Unlike lay witnesses who seem to be most believable suggestions for the framework of the direct examination of when they explain the factual basis for their opinions before an expert. they give an opinion (i.e., the symptoms of drunkenness as 1. The Tickler perceived by the witness before the opinion of For two to three minutes, when an expert first takes the drunkenness), expert opinion is more powerful if the stand, he enjoys a few golden moments when he has the opinion is given before its basis. fact-finder’s full attention, and so do you as his direct To begin with, if the opinion is held back until a lengthy examiner. Instead of spending the first 15 minutes of explanation of the basis is given, the opinion itself may be testimony on a litany of the background and qualifications lost as the fact-finder’s mind wanders. Accordingly, if your of the expert and encouraging the court or jury to daydream expert is going to give three opinions, you should consider or grow bored, ask two or three initial questions that tell the having the expert give all three opinions early in his or her fact-finder who the expert is and why he is there. For testimony in a succinct, systematic manner and explain instance: after each opinion that you will come back to it and explain Q. Doctor, can you tell us what kind of doctor you are? the basis and procedure in arriving at it. A. Yes, a neurologist. Such an approach ensures that even in a fact-finder pays attention to only the opening ten minutes of the Q. Is a neurologist a doctor skilled in the diagnosis and examination, the fact-finder will understand who the expert treatment of diseases of the nervous system? is, why he is there, and what his opinions are. A. Yes. 4. Explain the Basis for the Opinion Q. And have you come here today to explain to the fact- In my experience, the most persuasive expert testimony finder (court or jury) your diagnosis and treatment of the is the expert testimony in which the basis for the opinion is damage to plaintiff’s nervous system caused by the well organized, understandable, and succinct. accident? It is often helpful to use an overhead projector or a In short, within the first two to three minutes, make it chalkboard to list the points or the procedures as the expert clear to the fact-finder who the expert is and what he or she testifies about them to reinforce them and demonstrate their will be talking about. interrelationship. 2. Qualifications The expert must use common, everyday language—not In federal court, curricula vitae and resumes are jargon. The best experts use picture words and analogies, generally admitted into evidence. In state court, they are just as the best lawyers use them in a closing argument. admitted by certain judges and upon stipulation by the 5. Prepare for Cross-Examination parties. If you have the opportunity to do so, save precious examination time by introducing the vitae. An often overlooked but important component of any direct examination of an expert is to have the expert It is preferable to cover only the highlights of the undercut the adversary’s anticipated cross-examination by expert’s qualifications (which will relate directly to his or explaining away in his or her own words the points you her specific opinion) during direct examination and leave believe he or she will be asked upon cross-examination. the rest of the general background for the fact-finder to Such a preemptive strike, particularly at the end of the obtain from the curriculum vitae. This, of course, means the direct examination and just before cross-examination is to curriculum vitae should be reviewed and edited so that it begin, may convince your adversary to either abandon the becomes self-explanatory and persuasive and so that proposed line of cross-examination or risk the patience of extraneous matters are deleted. the fact-finder by covering “purported weaknesses,” which Nothing encourages the fact-finder’s mind to wander you have already shored up on direct examination. more than 20 minutes of detailed background questioning of an expert that has little to do with his or her opinion in a

16 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, July 1995. Reprinted with permission of author.

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6. Conclusion One thing I have learned about direct examination is that it may not be as exciting as cross-examinations, opening statements, and closing arguments, but it is usually the battlefield on which cases are won or lost. It is a constant challenge to turn the direct examination of an expert into an entertaining and attention-demanding presentation. You may want to consider the above-listed suggestions the next time you conduct the direct examination of an expert. Experience has taught me that no matter how accomplished your direct examination of an expert may be, it can always be made better.

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From the Editor: Effective Cross-Examination (Think of Your Mother)17 Cross-examination is perhaps the most challenging “You testified that my client’s vehicle crashed into aspect of our trial presentations. Unlike Raymond Burr in the plaintiff’s vehicle while trying to make a left- “Perry Mason” television serials, it’s fair to say that we hand turn, didn’t you?” seldom, if ever, force the opposition to concede our claims “You claim that my client is the one at fault, don’t or dismiss their claims as a result of brilliant cross- you?” examination. “You claim that you had a clear and unobstructed Spend an afternoon at one of the state or federal view of the accident?” courthouses watching cross-examinations, and you are (c) Begging. likely to witness a number of the techniques listed below, none of which are particularly effective. These traditional Then, after useless niceties and repeating the direct techniques and then a proposal for an alternative approach examination, the cross-examiner begins begging the (“remember your mother”) are discussed below. witness to change his story: 1. Ineffective Cross-Examination Techniques. “You can’t be sure that my client’s car hit the plaintiff’s car first, can you?” (The witness asserts Assume for purposes of illustration that the witness to that he is sure, despite the begging.) be examined is an 85-year-old grandfather who claims that on a dark and rainy night at a poorly lit intersection, he “The plaintiff’s vehicle could have just as easily witnessed your client’s car (which was attempting to make veered into my client’s lane by three or four inches a left-hand turn in the intersection) run into the plaintiff’s as my client could have veered into the plaintiff’s vehicle (which was proceeding through the intersection in lane, right?” (The witness denies that this the opposite direction). Your client admits that he was happened.) trying to make a left-hand turn, but that he simply was in “It all happened so fast, you can’t be absolutely the middle of the intersection with his left-turn indicator on, certain that my client’s vehicle was the one that and that the oncoming plaintiff’s vehicle crossed the went over the centerline first, can you?” (The centerline and ran into him. witness is certain.) (a) Useless Niceties. (d) Pulling Out the Hatchet and Chain Saw. Many cross-examinations begin with “useless niceties” The useless niceties, repeating of the direct that rob you of the opportunity to capitalize on the “golden examination, and begging are then followed by what I call moments” as you begin your cross-examination. When one “pulling out the hatchet and chain saw.” (Just like Freddy begins a cross-examination, the fact-finder (be it judge or Krueger and Jason from Nightmare on Elm Street and jury) will be paying the most attention. These golden Friday the 13th or the demented son in Texas Chainsaw moments should not be squandered. Massacre.) Useless niceties consist of questions and comments like You are going to take no hostages. You are going to use these: a “hatchet” and a “chain saw” to demonstrate that this “Good morning, Mr. Murphy. How are you doing elderly gentleman is not only mistaken, but also a liar—that this morning?” he must have some improper motive, such as an economic interest with the plaintiff. “Mr. Murphy, I’d just like to ask you a few questions. Could you give me your attention for a You pick up the hatchet and start the chain saw. You little while?” are ruthless. You maim him. You slash him. You show no mercy. You then sit down and your client leans over and “Mr. Murphy, beautiful weather we’re having, tells you what a marvelous job you did. aren’t we, for a state that’s noted for its rain?” Of course, your client is wrong. Your hatchet and chain (b) Repeating Direct Examination. saw massacre may have bloodied the courtroom, but it also After starting the cross-examination by squandering completely alienated the fact-finder (judge or jury), who golden moments with useless niceties, the examiner then was naturally sympathetic to an elderly gentleman proceeds to repeat portions of the direct examination, undergoing the foreign experience of testifying in a thereby reaffirming and reinforcing the points made on the courtroom and being subject to a cross-examination by an direct examination—apparently believing that by repeating experienced lawyer. the direct examination a second time, it will seem less Most of us realize over time that these types of hatchet credible. But this tactic almost never works. and chain-saw cross-examinations are more likely to hurt our client than persuade the fact-finder. It’s surprising,

17 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 26, No. 1, Spring 2007. Reprinted with permission of author.

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however, how long it takes many of us to put away the “Your glasses were wet from the rain?” hatchet and chain saw and trade them in for a scalpel. “Your glasses were ‘fogged up’ at times?” Admittedly, we are misled for a while by the positive Plus, your deposition work has allowed you to add an comments of our clients, who inevitably compliment us additional “distraction” to the cross-examination of Mr. after using the hatchet and chain saw. But the compliments Murphy: are soon forgotten when the fact-finder comes back with a disappointing verdict or judgment. “Let’s talk about your terrier’s attempt to eat the remnants of a fast-food wrapper . . . you 2. Conduct Your Cross-Examination as Your Mother understand . . . ?” Would. “You were walking your terrier?” Mothers love us regardless of our foibles. Perhaps this underlying affection explains why the questions of a “Your terrier once ate the remnants of a fast-food mother are so effective. Mothers do not use hatchets or wrapper . . . ?” chain saws; they use a scalpel to get at the truth. “It made her ill . . . ?” (a) Childhood Experience. “Your terrier had a wrapper in her mouth that Most of us have had the childhood experience as an night . . . ?” underage adolescent of having our parents leave us at home “You were concerned she would be ill?” alone for the weekend. We are given strict orders that no “You love your terrier?” friends are to visit, particularly friends of the opposite sex. “You were attempting to pull the wrapper from her We are instructed that there is to be no drinking, no mouth?” cigarette-smoking, no loud music—yet inevitably, there is. “That’s when the two cars approached?” Try as we might to hide, destroy, or mask the evidence, inevitably our parents, upon returning home, talk with the “You were bent over?” elderly neighbor who sits in her front window and watches “You were facing away from the intersection?” your home about what she saw while they were gone. You “You did not turn around . . . until you heard the then come home from school and undergo the following crash?” cross-examination by your mother: 3. Conclusion. “Our neighbor, Mrs. Smith, was home looking out Next time you have an opportunity to conduct cross- her window last Saturday night when we were out examination (or, for that matter, conduct a cross- of town. Did you know that?” examination during deposition in preparation for a trial “Cars were parked in front of the house?” cross-examination), consider putting away the hatchet and “Cars that belong to your friends?” the chain saw and trading them in for a scalpel. After all, “There was loud music?” Aristotle recognized that “to persuade” we must be “liked.” We are more likely to be “liked” without the hatchet and “Beer?” chain saw. “Smoking?” Conduct your cross with the skill, care, and affection of “Girls?” your mother when she cross-examined you as an You answer “no” to the first question and then “yes” to adolescent. Your client may not be as effusive with his or her questions like a lap dog barking for snacks. Her her praise after the cross-examination has been completed. cross-examination is effective without being “mean- But instead of running the risk of alienating the jury by spirited.” filling the jury box with blood, gore, and limbs, you are (b) Cross-Examining the Witness as Your Mother likely to find that you have persuaded the jury to your point Would. of view. Most clients would trade an opportunity to compliment us on a ruthless cross-examination for a You laid the groundwork for trial at the elderly successful outcome. gentleman’s deposition by asking questions as if you were conducting a cross-examination (using leading questions) to ensure that you would get the same answers at trial. Applying the same loving yet direct technique as your mother used on you, you now begin your cross-examination of the gentleman: “It was dark?” “It was raining?” “The intersection was dimly lit?” “You can’t see without your glasses?”

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Direct Examination: Old Dogs and New Tricks18

An eerie silence fell over the courtroom. The air Q: If the nicotine levels were increased, would seemed suddenly heavy. Time stopped. For the first that have any effect on anything? time all twelve jurors were on the edge of their seats. A: Yes. They were fully alert. They seemed to be straining Q: What? their senses (like bird dogs after prey) to absorb the A: The number of smokers. testimony that was about to come. Q: Would increasing nicotine mean more It had been quiet in the courtroom before. But smokers or fewer smokers? nothing like this. It was as if those present in the A: More smokers. courtroom were afraid to breathe, lest they distract attention from the questions about to be asked and the Q: More smokers than if the nicotine levels answers about to be given. were not increased? Some were reminded of old western movies A: Yes. when two cowboys riding through hostile Indian Q: Would this mean more or fewer sales? territory would rein their horses to a stop and one A: More. would whisper to the other: Q: Would this mean more or less profit for the “Slim, it’s quiet . . . too quiet.” company? The memorandum in the hands of the witness A: More. was important. First, it was addressed not to just Q: Would the increased profits be substantial or anyone but to the president of the tobacco company. insubstantial? But more importantly, the original had never been A: Very substantial. produced. In the hundreds of thousands of documents The stake had been driven into the vampire’s produced by the tobacco company, it was nowhere to heart. No one in the courtroom missed the importance be found. And yet, like a miracle, here was the file of these few questions and these few answers. In the copy—carried to court by its author, revealing to all minds of most of the jurors, the case was over. why the original had no doubt been destroyed. But it was not just the information that was Plaintiff’s counsel, sensing the drama of the delivered by the above direct examination that had moment, waited for the lengthy and unnatural silence impact. It was the manner in which the direct to draw the attention of all present in the courtroom examination was conducted. Plaintiff’s counsel to the witness stand. And that it did . . . just like understood the difference between routine direct moths in the darkness drawn to a lantern light. examination and powerful direct examination. In his opening, plaintiff’s counsel described the Plaintiff’s counsel understood the difference between witness in more glowing terms, but in simple cold traditional direct-examination techniques and English, he was “a turncoat former employee.” All traditional cross-examination techniques and knew, without translation, that this meant a witness consciously elected to apply the latter in this direct who was not “beholden to the company”—a witness examination. whose job, reputation, and future income were not on By adopting a traditional cross-examination style the line. A witness whose testimony would not be (in which the lawyer does the work and offers the tainted by his employment relationship with the witness only alternatives and no more than a word or defendant tobacco company. two in the witness’s answer), plaintiff’s counsel had Plaintiff’s counsel cleared his throat as a argued the important points of this testimony to the precaution to ensure that the questions he was about jury “through the window of the direct-examination to ask would be clear, crisp, and well enunciated. witness,” just as a cross-examiner argues a case to the Q: Did you read the third paragraph of the jury “through the window of a cross-examination memorandum? witness.” A: Yes. One of the advantages of arguing the case Q: What was the subject of the third paragraph? through a witness on direct examination, just as most A: Nicotine. lawyers argue their cases through witnesses on cross- examination, is that the answers to the lawyer’s Q: What about nicotine was discussed? questions are answered by the fact-finder before the A: The nicotine levels in cigarettes. witness answers. As a result, if the answer is Q: Did the paragraph suggest that the nicotine compelled by common sense, regardless of the levels be increased or decreased? witness’s answer, each member of the jury arrives at A: Increased. ______18 By Dennis P. Rawlinson. From the Oregon State Bar Litigation Section Litigation Journal, Vol. 30, No. 3, Fall 2011. Reprinted with permission of author. Previously reprinted from the Spring 2005 edition of Litigation magazine, a publication of the American Bar Association Section of Litigation.

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his or her own answer . . . first. Such an answer is not Discussed below is a comparison of the subject to impeachment by any adversary. traditional rules of direct examination and cross- The technique discussed above is not novel. Two examination. By understanding how direct of the proponents of this alternative approach to examinations are traditionally conducted and direct examination are trial-technique instructors, understanding how cross-examinations are Judge Herbert Stern and Judge Ralph Adam Fine. traditionally conducted, we can then consciously Judge Fine uses an example substantially identical to decide whether in a given circumstance (such as the the one set forth above to show the effectiveness of disclosure of the contents of the third paragraph of this technique by borrowing from the novel Runaway the memorandum that the tobacco company had Jury by John Grisham. destroyed in the above example) abandoning direct- In stark contrast to the foregoing, the traditional examination techniques and embracing cross- method of direct examination would have the witness examination techniques for a brief interlude or even do the work. Plaintiff’s counsel would simply ask the for an entire direct examination might make your witness what the memorandum disclosed, and the direct examination more powerful and persuasive. witness would be likely to “dump” all the incendiary, A comparison of the traditional general rules for high-impact information into a single answer, which conducting direct examination and cross-examination could be easily missed by a nonattentive or exposes a common theme. Whatever rule applies to daydreaming juror. direct examination, usually the directly opposite rule Q: What was in the third paragraph of the applies to cross-examination. memorandum? This contrast is not surprising. After all, direct A: I suggested to the president that the examinations generally consist of eliciting helpful company take a serious look at increasing information from cooperative witnesses whose the nicotine levels in its cigarettes. More credibility we are attempting to bolster. On the other nicotine would mean more smokers, which hand, on cross-examination we are generally would mean more sales and more profits. attempting to elicit helpful information from an uncooperative witness whose credibility we are The difference in the effectiveness of the attempting to impeach. two techniques is obvious. A review of six general rules of cross- Although arguably the information provided examination and comparing those rules with under both of the direct-examination techniques comparable rules for direct examination will outlined above is substantially similar, this second demonstrate the contrast. example is not as powerful as it could be if the lawyer, not the witness, were doing the work. With a A traditional cross-examination ends strongly single question and answer, there is always the risk but starts slowly. In contrast, a good direct that the jury will be distracted for a moment and miss examination, redirect examination, or recross or misunderstand the answer. examination should start and end strongly (take advantage of the persuasive techniques of primacy Under the first example, with a lawyer doing the and recency). Similarly, cross-examination should work, it would be hard for a member of the jury to finish strongly, ending with the traditional “zinger,” a miss the answer or miss the point. The questions and point that is a guaranteed winner in that it is answers are “drawn out,” repetitive, and much more absolutely admissible, is central to your theory, dramatic. Moreover, under the first example as evokes your theme, is undeniable, and can be stated discussed above, the jury knows the answer to the with conviction. In direct examination the same kind question before it is even answered. Why? Because of impact can be made with a zinger in the opening the answer is compelled by common sense. line of questions. Today, many established trial techniques and Cross-examination, however, should usually not tactics that have been largely unchallenged are being begin with a zinger. Why? Because employing an reevaluated by commentators and practitioners to initial zinger will alienate the cross-examination determine whether the assumptions on which they are witness and make it impossible to draw from that based are truly sound. One of the areas that is being witness helpful points to generally bolster your case challenged is the traditional approach to direct (before turning to hostile questions and ending with a examination. As disclosed by the contrast of the zinger). two techniques disclosed above, sometimes applying a traditional cross-examination technique to a direct Starting slowly on cross-examination will allow examination can be more effective than employing you to take full advantage of information available traditional direct-examination techniques. from the cross-examination witness before you allow

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your relationship with him or her to deteriorate into 4. To the extent that you don’t review alienation. important documents, you have someone on First, you can elicit friendly background whom you can rely review them? information that is not threatening, but that may 5. You insist that important and crucial points support your theory and theme, such as the that are discovered in documents be brought achievements and extraordinary training of a to your attention? defendant who you are attempting to show knew full 6. It is this kind of detailed, cautious, and well what he or she was doing at the time of the deliberate procedure that has led to your complained-of conduct. success? Second, after exhausting the friendly Having established a general practice of careful information, you can ask questions to build the value reading of documents, while at the same time of your case by providing affirmative information flattering the witness’s achievements and work that will fill in gaps and will be more persuasive habits, will allow you by indirection either to obtain coming from an adverse rather than a friendly the admission or to frame a question concerning witness. understanding of the agreement or letter that will Finally, uncontroverted information that is well make apparent the answer you should have gotten. If documented or well settled can be solicited before you had flagged in advance where you were going resorting to your first challenging information and why you were asking the background questions, questions and finally your hostile questions to the the result might have been quite different. cross-examination witness. In traditional cross-examination, details are Traditional cross-examination employs given first. In contrast, often in direct examination indirection. In contrast, during the direct the most effective procedure is to cover details only examination, in the interest of assisting your witness after the witness has described the “action” of his or and drawing a clear, easy-to-follow picture for the her recollections. Put differently, it is generally fact-finder, the examiner works hard to make it clear prudent not to interrupt the action of the witness’s where he or she is going. In contrast, on cross- story on direct examination with detailed questions examination, making it clear to the witness where about distances, thought processes, and emotional you are going will only encourage the witness to reactions until the action has been told and completed become evasive, hostile, and argumentative. in a series of frames where each point adds an For instance, if you are trying to make the point additional action step and captures the fact-finder’s that the witness should have understood the contract attention. or letter the witness read, and you ask the question In cross-examination, the details must be elicited directly, you will probably not get the answer you initially so that you can use them to “herd” and want. On the other hand, you can achieve the same “corral” the witness to provide you with the goal by indirection. Before concentrating on the admissions you need. Until the factual background simple language of the agreement or letter that the has been laid by the adverse witness that limits the witness has admitted receiving and reading, you can routes of escape and explanation, cross-examination establish the witness’s extensive experience, is often ineffective. achievements, and laudable business practices Traditional cross-examination scatters through a series of questions with which the witness circumstantial evidence. In contrast, in argument and will have to agree and that will lead to only one on direct examination, assembling circumstantial conclusion concerning the witness’s understanding of evidence often makes the contention of the proponent the agreement or letter. persuasive. Questions that could be asked to set up the In argument and on direct examination, indirection: assembling circumstantial evidence often makes the 1. You have more than 30 years of experience contention of the proponent persuasive. If the negotiating contracts, don’t you? contention of the proponent is that someone was late 2. You’ve been highly successful in for an appointment and therefore negligent in his or negotiating successful contracts over your her driving, assembling circumstantial evidence career? about the importance of the appointment, the time of 3. You regularly hire lawyers to assist you in the appointment, the time of the accident, the speed reviewing important documents? of the car at the time of the accident, and the conduct after the accident, including an immediate phone call to the location of the appointment, supports the persuasiveness of the contention.

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In cross-examination, assembling circumstantial examiner to argue his or her case through the window evidence to support a contention will make the of a witness. contention obvious to the adverse witness and result Under this approach, the witness on direct in encouraging that witness to be evasive, hostile, and examination is never allowed to answer any more argumentative. Thus, the circumstantial evidence than a sentence. This allows the examiner to do the points should be separated and scattered so that they work and control the examination. It limits the are obtained either from different witnesses or at amount of “each bite” of information that is given to different points in the examination so that your the fact-finder, improving the possibility of ultimate objective and contention is not obvious. understanding. Moreover, it allows the examiner to Traditional cross-examination employs short take advantage of the additional benefits discussed questions and short answers. In contrast, during direct below. examination the examiner strives for short questions A number of advantages can be realized by using and long narrative answers by the witness. This cross-examination techniques to conduct a direct allows the attention of the fact-finder to focus on the examination and thereby argue your case through the witness, not the examiner. Open questions are used. window of a witness. The witness is left unfettered to improve his or her Under traditional direct-examination techniques, credibility. the witness is placed under a tremendous amount of Allowing an adverse witness to launch into long pressure. He is told that he will be asked, “What answers and explanations will doom any cross- happened?” The witness is then expected to tell his examination. The questions should be not only short, story in the way that is most persuasive, articulate, but also closed-ended to control and limit the adverse and memorable. The witness is told to “be sure to witness’s response. By inching along and adding only cover this, be sure to cover that, and don’t forget to one fact at a time, the examiner can control the say this . . . and by the way, you cannot use any adverse witness and give the adverse witness little notes.” room for argument and evasion. Is it really fair to lay all this burden on the Traditional cross-examination draws attention to witness? Is this really the most effective approach to the cross-examiner. In contrast, during classic direct direct examination? Shouldn’t a lawyer be doing the examination the examiner attempts to place the “rowing” (work)? attention of the fact-finder on the witness. The In contrast, under the alternative approach, the examiner simply shepherds the witness in telling his lawyer takes control and does the work. The witness or her story in a natural, credible, and easy-to-follow is asked a series of short questions to each of which manner. In contrast, on cross-examination, the he gives an answer of only a word or two and in no attention should be on the cross-examiner. Cross- event any longer than a sentence. The lawyer then examination is often the opportunity for the cross- leads the witness to the next point. The witness can examiner to argue his or her themes or theories by now relax. asking questions the answers to which are often If the lawyer does the work and coaches the irrelevant. By raising impeaching, contrasting, and witness to give short answers, the lawyer has a full contradictory points, the examiner brings attention to array of persuasive techniques available. First, himself or herself and thereby exposes the weakness repetition on the most important and damaging of the recently conducted direct examination. points; the direct examiner can repeat a point several Having refreshed ourselves of the contrast times by rephrasing the question to ensure that it is between the traditional rules of cross-examination remembered by the fact-finder. and direct examination, let’s now consider (as one of Second, the lawyer can remove from the direct- the “new tricks” being urged by commentators and examination testimony tangential, irrelevant, and side forward-thinking practitioners) abandoning the points that clutter up the information the fact-finder traditional direct-examination approach on direct needs to receive. Third, the lawyer can, by examination for a cross-examination approach. controlling the witness, make the arguments to the Under such an approach, the direct examination jury that are available through the direct-examination should be tightly controlled by the examiner, the witness. Similar to cross-examination, the examiner direct-examination witness should be given little or can argue the case through the window of the direct- no leeway, and the attention of the fact-finder during examination witness. examination should be on the examiner, not the In traditional direct examination, it was up to the witness. Thus, like cross-examination, direct witness (whether a fact or an expert witness) to be examination becomes an opportunity for the persuasive—to be the salesperson. At least in my

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experience, most fact-finders are suspicious of fact or Q: The three beers that the defendant drank— expert witnesses who appear to be “salespersons.” did he drink them out of the bottle or with a In contrast, the fact-finder expects the lawyer glass? examiner to be a salesperson. As a result, if the A: Out of the bottle. lawyer argues through the direct-examination witness Q: The three beers that the defendant drank— and the witness simply provides short, accurate, and did he drink them slowly or fast? thoughtful answers, the resulting argument is that of A: He drank the first two fast and the last one the lawyer. The witness’s credibility is not undercut slowly. or tainted by the witness’s active effort to sell the Under that example, with the lawyer doing the point. work, it would be hard for the fact-finder to miss the Having discussed the contrast between fact that the defendant had three beers. In fact, traditional techniques of direct examination and whether the beers were imported or domestic, bottled cross-examination and having discussed how or from the tap, light or dark, drunk with a glass or applying cross-examination techniques to direct from the bottle, or drunk slowly or fast is irrelevant. examination can sometimes be effective, let’s take a The point is, the defendant drank three beers, and that look at a second example of employing cross- point is being driven home so that the fact-finder will examination techniques in direct examination. not miss it. This can be demonstrated by a simple The advantage of arguing the case through a intersection collision case, assuming that there is no witness on direct examination is that it is powerful dispute as to fault. You have the good fortune of and undeniable, and it allows you to repeat and learning that the defendant had three beers before the emphasize important points. accident. A good solid understanding of the differences You call an eyewitness who was present when between traditional direct examination and cross- the defendant had the three beers at a local tavern. examination should not be the end of your analysis. Your direct examination, instead of simply setting the Consider using cross-examination techniques during scene and asking the witness what he or she saw and all or portions of your direct examinations. Doing so again running the risk that in long narrative answers will give you yet another opportunity to argue your the point and impact of the testimony might be lost, case through the window of the witness on the stand. can be transformed by having the lawyer do the When you stop and think about it, the potential work. advantage is obvious. It seems undeniable that in a Set forth below is another sample of direct trial, if one of the lawyers spends 80 or 100 percent examination in which the examiner does the work, of his or her cross- and direct-examination time limits the answers of the witness, and emphasizes arguing his or her case through the window of the through repetition the point that the defendant had witnesses on the stand and the opposing attorney been drinking at the time of the accident through the using traditional methods gives up the opportunity to window of the direct-examination witness. argue the case during direct examination (and as a Q: Did the defendant have a beer? result is able to argue his or her case through the A: Yes. window of the witnesses on the stand only 50 percent Q: Did the defendant have a second beer? or less of the time), the first lawyer will have the A: Yes. advantage. Q: Did the defendant have a third beer? We all work hard to master the traditional methods of direct and cross-examination. Having A: Yes. mastered those techniques, the battle is not over. One Q: So the defendant had a total of three beers? of the keys to continuing to improve our skills is to A: Yes. continue to consider alternative and improved Q: The three beers that the defendant drank— approaches to the persuasive techniques we have were they imported or domestic beers? mastered. One of the alternatives that may offer the A: Imported. greatest promise is substituting cross-examination Q: The three beers that the defendant drank— techniques in our direct examinations. were they light beers or dark beers? A: Light. Q: The three beers that the defendant drank— were they bottled beers or from the tap? A: Bottled.

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AMERICAN BAR ASSOCIATION CIVIL TRIAL PRACTICE STANDARDS (2007)

CIVIL TRIAL PRACTICE STANDARDS

AMERICAN BAR ASSOCIATION

UPDATED AUGUST 2007

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The Standards were adopted as ABA policy in August 2007. The accompanying commentary has not been adopted by the ABA House of Delegates and, as such, should not be construed as representing the policy of the Association. Copyright © 2007 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

The ABA hereby grants permission for the Standards to be reproduced in its entirety and without alteration for non-commercial purposes by not-for- profit organizations and federal, state, or local government agencies. Requests to reproduce the Standards in any other manner must be sent to [email protected].

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TABLE OF CONTENTS

PAGE

INTRODUCTION...... iv

PREFACE vi

PART ONE: THE JURY...... 1 1. Juror Notebooks...... 1 Comment ...... 2 2. Juror Note-Taking ...... 3 Comment ...... 3 3. Juror Questions for Witnesses...... 3 Comment ...... 4 4. Instructing the Jury...... 6 Comment ...... 6 5. Exhibit Availability During Jury Deliberations ...... 7 Comment ...... 7 PART TWO: JUDICIAL PARTICIPATION IN DEVELOPING EVIDENCE...... 8 6. Court-Appointed Experts...... 8 Comment ...... 10 7. Use of Tutorials to Assist the Court ...... 12 Comment ...... 14 PART THREE: JUDICIAL CONTROL OVER TRIAL PRESENTATION ...... 16 8. Limits on Trial Presentation ...... 16 Comment ...... 18 9. Interim Statements and Arguments ...... 19 Comment ...... 20 10. Order of Proceedings...... 21 Comment ...... 22

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11. Demonstrative Evidence...... 23 Comment ...... 23 12. Summary Exhibits and Witnesses ...... 24 Comment ...... 26 13. Multiple Parties & Questioning...... 27 Comment ...... 27 PART FOUR: EXPERT AND SCIENTIFIC EVIDENCE...... 29 14. "Qualifying" Expert Witnesses...... 29 Comment ...... 29 PART FIVE: MOTIONS IN LIMINE ...... 32 15. Motions & Rulings ...... 32 Comment ...... 32 PART SIX: BENCH TRIALS...... 34 16. Submissions & Rulings ...... 34 Comment ...... 34 17. Continuity of Proceedings ...... 34 Comment ...... 34 PART SEVEN: GENERAL ...... 36 18. Electronic Filing ...... 36 Comment ...... 36 19. Televised Court Proceedings...... 36 Comment ...... 37 20. Courtroom Technology ...... 38 Comment ...... 38 21. Videotaped Testimony...... 39 Comment ...... 39

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22. Organizing the Complex Case for Trial...... 40 Comment ...... 41 23. Judicial Involvement With Settlement ...... 42 Comment ...... 44

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CIVIL TRIAL PRACTICE STANDARDS

INTRODUCTION

Since the middle of the 20th Century, trials have been characterized by increasing complexity and transformed by accelerating technology, new causes of action, novel fields of expertise, and the adoption of vastly liberalized codes of evidence. As trials have become more complicated, state and federal courts have developed a multitude of innovative techniques to enhance juror comprehension.

In 1998, the American Bar Association adopted the Civil Trial Practice Standards to standardize and promote the use of these innovative trial techniques. The Standards were drafted by a Task Force of the ABA Section of Litigation that included four past and present Chairs of the Section of Litigation; distinguished plaintiffs’ and defense counsel from around the country — from firms with as few as two lawyers to firms of several hundred; highly respected state and federal judges; and representatives of the Judicial Division of the ABA and the American College of Trial Lawyers. Before they were finalized, drafts of the Standards were distributed for public comment to every state and major local bar association; all sections of the ABA; other bar organizations; and hundreds of state and federal judges, and trial lawyers, across the country.

The Original Standards filled an important gap. They recommended procedures and otherwise furnished guidance that was not available elsewhere and were designed to foster and ensure a fair trial in both state and federal court. Critics of the jury trial have questioned the ability of jurors to decide complex cases fairly. The procedures recommended in the Civil Trial Practice Standards were particularly useful in complex cases and provided jurors the tools they needed to come to fair decisions in all cases.

In light of the passage of time since the Civil Trial Practice Standards were adopted as official ABA policy, a Task Force of the ABA Section of Litigation was formed for the sole purpose of reviewing and updating the Civil Trial Practice Standards. Consistent with the work of the original task force that drafted what became the Civil Trial Practice Standards, the Update Task Force reviewed and evaluated the existing Standards to consider whether they continued to address practical aspects of trial that were not fully addressed by rules of evidence or procedure and consider potential new Standards that would supplement and operate consistently with those rules.

A development of huge proportions in the updating of the original Civil Trial Practice Standards was the adoption in 2005 by the American Bar Association of the Principles for Juries and Jury Trials created by the American Jury Project. As noted in the preamble to the ABA Principles:

The American Bar Association recognizes the legal community’s ongoing need to refine and improve jury practice so that the right to jury trial is

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CIVIL TRIAL PRACTICE STANDARDS

preserved and juror participation enhanced. What follows is a set of 19 Principles that define our fundamental aspirations for the management of the jury system.

Significant core concepts included within Original Standards 1-10 were evaluated, refined and integrated into the aforementioned 19 Principles that comprise the ABA Principles for Juries and Jury Trials. As a result, in the Updated Standards that follow, five of the initial 10 Original Standards have been deleted and the remaining five have been revised consistent with the ABA Principles. In addition, based on the work of the Update Task Force, three additional revised and four new standards have been integrated into the Updated Civil Trial Practice Standards.

The civil jury trial lies at the foundation of the American system of justice. Promoting improvements in the jury trial is a core mission — and one of the highest priorities — of the American Bar Association and its Section of Litigation. Consistent with the Principles for Juries and Jury Trials, the Updated Civil Trial Practice Standards stand in the highest traditions of the American Bar Association in the service of the courts, both state and federal, and the civil jury system.

Gregory P. Joseph Chair 1997-98 Section of Litigation American Bar Association

Kim J. Askew Chair 2006-07 Section of Litigation American Bar Association

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PREFACE

These Updated Civil Trial Practice Standards have been developed as guidelines to assist judges and lawyers who try civil cases in state and federal court. The Updated Standards address practical aspects of trial that are not fully addressed by rules of evidence or procedure. They are not intended to be a substitute for existing evidentiary or procedural rules but rather to supplement and operate consistently with those rules. The Updated Standards are predicated on the recognition that, in an era of increasingly complicated evidence and litigation, there are methods for enhancing jury comprehension and minimizing jury confusion that merit wider consideration and use. These Updated Standards are designed to furnish practical guidance for the implementation and use of many of these methods.

The Updated Standards suggest a variety of approaches but recognize that ultimately the trial court must exercise its discretion in light of the circumstances before it, and nothing in these Updated Standards limits that discretion. The Updated Standards are drafted on the assumption that each litigant before the court is represented by counsel. The court's exercise of discretion will necessarily be affected if parties are appearing pro se.

These Updated Standards do not reflect any substantive legal doctrines. They are not comprehensive in the sense that many other issues arise at trial that are not addressed in the rules of evidence or procedure and yet have an impact on a jury's ability to perform its function. They are advisory only and, while they have been drafted to operate consistently with existing law, in the event of any conflict, the law governing in the jurisdiction prevails. It is hoped that, notwithstanding these limitations, these Updated Standards will prove useful to both bench and bar.

AMERICAN BAR ASSOCIATION SECTION OF LITIGATION TASK FORCE ON CIVIL TRIAL PRACTICE STANDARDS

Hon. Marvin E. Aspen Rudy A. Englund Prof. Stephen A. Saltzburg, Co-Chair Co-Chair Co-Chair

W. Reece Bader Judah Best Benjamin R. Civiletti Hon. John Cornyn Prof. JoAnne A. Epps Patricia M. Hynes Gregory P. Joseph Loren Kieve Jeffrey B. Kindler Louise A. LaMothe Judith A. Miller Dennis P. Rawlinson Patricia Lee Refo Benjamine Reid Gary C. Robb Jerold S. Solovy Stephen D. Susman Hon. Curtis E. von Kann G. Marc Whitehead

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CIVIL TRIAL PRACTICE STANDARDS

Hon. David A. Horowitz Michael A. Cooper Liaison, American Bar Association Liaison, American College of Judicial Division Trial Lawyers

AMERICAN BAR ASSOCIATION SECTION OF LITIGATION CIVIL TRIAL PRACTICE STANDARDS UPDATE TASK FORCE

Brooks R. Burdette Rudy A. Englund Judith A. Miller Co-Chair Co-Chair Co-Chair

Hon. Marvin E. Aspen Prof. Phyliss V. Craig-Taylor Dennis J. Drasco Prof. JoAnne A. Epps Michael R. Griffinger Gregory P. Joseph Prof. Stephan Landsman Linda L. Listrom Dennis P. Rawlinson Patricia Lee Refo Steven O. Rosen Prof. Stephen A. Saltzburg Herbert E. Walter

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PART ONE: THE JURY

1. Juror Notebooks.

a. Use & Contents. In appropriate cases where juror notebooks are used, they may include such items as the court’s preliminary instructions, selected exhibits which have been ruled admissible, stipulations of the parties and other relevant materials not subject to genuine dispute, which may include:

i. Photographs of parties, witnesses, or exhibits;

ii. Curricula vitae of experts;

iii. Lists or seating charts identifying attorneys and their respective clients;

iv. A short statement of the parties’ claims and defenses;

v. Lists or indices of admitted exhibits;

vi. Glossaries;

vii. Chronologies or timelines; and

viii. The court’s instructions.

The notebooks should include paper for the jurors’ use in taking notes.

b. Procedure.

i. Conferral Requirement. The court should require counsel to confer on the contents of the notebooks before trial begins.

ii. Parties Not in Agreement. If counsel cannot agree, each party should be afforded the opportunity to submit its proposal and to comment upon any proposal submitted by another party.

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Comment

The ABA Principles for Juries and Jury Trials provide that jurors should, in appropriate cases, be supplied with identical trial notebooks, and set forth the procedures a court should follow in doing so. See Principle 13B. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf. This Standard elaborates on the appropriate contents of juror notebooks and the procedures for using them.

This Standard encourages the increasingly common practice of using juror notebooks to maximize comprehension of the evidence in appropriately complex cases. In addition to copies of the court’s instructions, important exhibits (or salient excerpts from exhibits) and stipulations, contents may consist of any other aids to the understanding of the jury that the court finds appropriate in the circumstances. See, e.g., United States v. Rana, 944 F.2d 123, 126 (3d Cir. 1991), cert. denied, 112 S. Ct. 981 (1992); ACandS, Inc. v. Godwin, 340 Md. 334, 400 n.22, 667 A.2d 116, 148 n.22 (1995); Gray v. Phillips Petrol. Co., No. 84-2107-S, 1990 U.S. Dist. LEXIS 5677 at *2-*3 (D. Kan. 1990); United States v. Plitt Southern Theaters, Inc., 671 F. Supp. 1095, 1096 (W.D.N.C. 1987); Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th §§ 12.32, 12.422 (2004); American Bar Association Section of Litigation, National Center for State Courts & State Justice Institute, JURY TRIAL INNOVATIONS § 4.77 (Munsterman et al. eds., 2d ed. 2006); Hon. Robert M. Parker, Streamlining Complex Cases, 10 REV. LITIG. 547, 550 (1991); Robert E. Litan (ed.), VERDICT: ASSESSING THE CIVIL JURY SYSTEM 388 (Brookings 1993).

It lies within the court’s discretion to decide not only whether but also when notebooks should be distributed. Ordinarily, if notebooks are to be provided, they should be distributed at or near the outset of trial for convenience of reference throughout the proceedings. Alternatively, the court may determine that distribution should follow the introduction of some or all of the exhibits or salient testimony. In either event, the court may permit the parties to supplement the notebooks with additional materials that the court rules admissible or includible later in the trial. Materials that have not specifically been approved by the judge may not be included in jury notebooks.

The court may suggest or, in appropriate cases, direct the parties to prepare notebooks for jurors. This should ordinarily be resolved prior to trial.

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2. Juror Note-Taking.

Cautionary Instructions. Jurors should be instructed at the beginning of the trial that they are permitted, but not required, to take notes in aid of their memory of the evidence and should receive appropriate cautionary instructions on note-taking and note use, including that:

i. Jurors are not required to take notes, and those who take notes are not required to take notes extensively;

ii. Note-taking should not divert jurors from paying full attention to the evidence and evaluating witness credibility;

iii. Notes are merely memory aids and are not evidence or the official record;

iv. Jurors who take few or no notes should not permit their independent recollection of the evidence to be influenced solely by the fact that other jurors have taken notes;

v. Notes are confidential and will not be reviewed by the court or anyone else. They may not be disclosed to other jurors until deliberations begin; and

vi. Jurors should also be instructed that after they have reached their verdict, all jurors’ notes will be collected and destroyed.

Comment

This Standard is taken from Principle 13A (1-5) of the ABA Principles for Juries and Jury Trials. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf.

3. Juror Questions for Witnesses.

Cautionary Instructions. Jurors should be instructed at the beginning of the trial concerning their ability to submit written questions for witnesses including that:

i. Questions should be reserved for important points only;

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ii. The sole purpose of juror questions is to clarify the testimony, not to comment on it or express any opinion about it;

iii. Jurors are not to argue with the witness;

iv. Jurors are to remember that they are not advocates and must remain neutral fact finders;

v. Jurors are not to reach any definite conclusions until the end of the case, after they have heard all of the evidence and arguments of counsel;

vi. There are some questions that the court will not ask, or will not ask in the form that a juror has written, because of the rules of evidence or other legal reasons, or because the question is expected to be answered later in the case;

vii. Jurors are to draw no inference if a question is not asked -- it is no reflection on either the juror or the question;

viii. Jurors are not to weigh the answers to their questions more heavily than other evidence in the case;

ix. Questions will be accepted only in writing, at the court's invitation, and are not to be disclosed to other jurors; and

x. Any question must be submitted in writing to the court, with the juror's signature or designated number affixed.

Instructions vi., vii. and viii. should ordinarily be reiterated in the final jury charge. Comment

The ABA Principles for Juries and Jury Trials provide that jurors should ordinarily be permitted to submit written questions for witnesses and set forth procedures a court should follow in doing so. See Principle 13C. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf. This Standard sets forth the elements the court should include in its cautionary instructions on jurors’ written questions.

Questioning is primarily the province of counsel, not jurors. With appropriate safeguards, however, juror questioning can materially advance

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the pursuit of truth, particularly when a jury is confronted with a complex case, complicated evidence or unclear testimony. See, e.g., American Judicature Society, TOWARD MORE ACTIVE JURIES: TAKING NOTES & ASKING QUESTIONS 11-14 (1991); Heuer & Penrod, Increasing Juror Participation in Trials Through Note Taking and Question Asking, 79 JUDICATURE 256 (1996); Robert E. Litan (ed.), VERDICT: ASSESSING THE CIVIL JURY SYSTEM 358-60, 390-91 (Brookings 1993); Statement of Robert MacCoun, University of California at Berkeley Graduate School of Public Policy, before the Judiciary Committee of the California State Senate concerning Improving Jury Comprehension in Criminal and Civil Trials at 1 (July 27, 1995).

State and federal courts have overwhelmingly recognized that whether to allow juror questioning of witnesses is a matter vested in the sound discretion of the trial judge. See, e.g., United States v. Bush, 47 F.3d 511, 514-15 (2d Cir. 1995); United States v. Cassiere, 4 F.3d 1006, 1017-18 (1st Cir. 1993); United States v. George, 986 F.2d 1176, 1178 (8th Cir. 1993); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516 (4th Cir. 1985); United States v. Callahan, 588 F.2d 1078, 1086 (5th Cir.), cert. denied, 444 U.S. 26 (1979); Spitzer v. Haims & Co., 217 Conn. 532, 546-47, 587 A.2d 105, 112-13 (1991); Rudolph v. Iowa Methodist Med. Ctr., 293 N.W.2d 550, 555-56 (Iowa 1980); State v. Hays, 883 P.2d 1093, 1101-02 (Kan. 1994); State v. Graves, 907 P.2d 963, 966-67 (Mont. 1995); People v. Bacic, 202 A.D.2d 234, 608 N.Y.S.2d 452, 452 (1st Dept.), appeal denied, 616 N.Y.S.2d 483 (1994); 3 Wigmore, EVIDENCE § 784(a) (Chadbourn rev.).

The practice of jury questioning -- especially oral questioning -- has often been frowned upon, particularly in criminal cases, due to concern that it risks compromising jury neutrality, encouraging premature deliberations, and unduly delaying the proceedings. These concerns can be addressed with proper precautions, as adumbrated in this Standard, and a vigilant trial judge. Moreover, civil actions rarely present the same constitutional issues or liberty interests that foster judicial sensitivity in criminal cases.

Ordinarily, the court should not invite or entertain questions from jurors until after the parties’ examination and cross-examination of a witness has concluded.

The Standard provides that jurors should identify themselves when submitting questions. This is designed to enable the parties and the judge to address any potential or apparent violations of the judge's instructions or the juror's duties.

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4. Instructing the Jury.

a. Notice to Parties. Before delivering any instructions to the jury, the court should:

i. Inform counsel on the record of the content of the instructions it intends to deliver;

ii. Allow argument by counsel concerning the proposed instructions;

iii. Allow counsel to make a record of any objections; and

iv. Provide counsel with copies of the instructions.

b. Conferral Requirement. The court should require counsel to confer on the substance of instructions before trial begins.

Comment

This Standard supplements Principles 6 and 14A through D of the ABA Principles For Juries and Jury Trials. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf

Judges should require counsel to confer and to seek agreement on substantive instructions before trial begins. Where counsel cannot agree, each party should be required to submit proposed instructions and objections to the opponent’s instructions before trial. The judge should consider having a pretrial conference to rule on instructions prior to trial. At a minimum, where there is dispute over basic, relevant legal principles, the court should advise counsel as to its determination of the law, which will be reflected in its preliminary instructions, so that counsel can prepare their openings, and otherwise finalize preparation of their cases, based on the court’s resolution of the governing law.

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5. Exhibit Availability During Jury Deliberations.

a. Aids. The court may, in appropriate cases, provide the jurors with aids, in addition to an index, to facilitate their review of the evidence.

b. Exhibits Offered for Limited Purposes. If an exhibit that has been admitted for any limited purpose is provided for juror use during deliberations, the court should consider re-instructing the jury as to the limited purpose of which the exhibit was admitted. Comment

The ABA Principles for Juries and Jury Trials provide that jurors should "ordinarily be provided" with exhibits admitted into evidence and with an index to those exhibits. See Principle 15B. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf. This standard describes several other steps that may facilitate jurors' use of exhibits during deliberations.

Subdivision a. recognizes that certain types of aids, in addition to an index, may be necessary for the jury to review evidence efficiently – or, in some cases, at all – during deliberations. Of particular importance are mechanical aids, such as videocassette recorders to review videotapes. The Standard is drafted broadly in view of the large number of items that fall within this category, including those to be developed in the future. In exercising its discretion in this regard, the court should take into account any risk that the aid sent to the jury room, coupled with whatever else is available to the jury, might be used for improper experimentation purposes.

Subdivision b. is drawn from the cases which find that certain admonitory instructions may be appropriate when evidence admitted for a limited purpose is sent to the jury room. See, e.g., United States v. Cox, 633 F.2d 871, 874 (9th Cir. 1980), cert. denied, 454 U.S. 844 (1981); State v. Lord, 117 Wash. 2d 829, 856-57, 822 P.2d 177, 193-94 (1991).

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PART TWO: JUDICIAL PARTICIPATION IN DEVELOPING EVIDENCE

6. Court-Appointed Experts. The court may appoint an expert to serve as a judicial tutor as to esoteric subject matter or, in exceptional cases, as a witness to testify at a trial. The same expert may serve in both capacities.

a. Selection.

i. The court should invite the parties to recommend jointly an expert to be appointed by the court.

ii. If the parties cannot agree, the court should invite them to submit names of a specified number of experts with a summary of their qualifications and an explanation of the manner in which those qualifications "fit" the issues in the case.

iii. The court may choose one or more experts recommended by each party; it may choose one or more experts from those recommended by any of the parties; or it may reject the experts recommended by the parties and select an expert unilaterally.

iv. Before selecting an expert, the court should:

A. Consider seeking recommendations from a relevant professional organization or entity that is responsible for setting standards or evaluating qualifications of persons who have expertise in the relevant area, or from the academic community, and

B. Afford the parties an opportunity to object to the appointee on the basis of bias, qualifications or experience.

b. Scope of Expert’s Duties. The court should afford the parties the opportunity to participate in defining the scope of the expert’s duties.

c. Communications between Court and Expert. The court should ensure that the parties are aware of all communications pertaining to the merits between the court and a court-appointed expert by:

i. Permitting the parties to be present when the court meets or speaks with the expert;

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ii. Providing that all communications between court and expert will be in writing with copies to the parties; or

iii. Recording oral communications between court and expert and making a transcript or copy of the recording available to the parties.

d. Communications between Parties and Expert. The court should ensure that every party is:

i. Informed of, and afforded the opportunity to explore, in advance of trial, the findings and opinions of any court-appointed expert; and

ii. Aware of all communications between any party and a court- appointed expert by:

A. Permitting all parties to be present when any party meets or speaks with the expert, or

B. Providing that all communications between any party and the expert will be in writing with copies to all parties.

e. Testimony at Trial. If an expert witness appointed by the court testifies at trial:

i. Questioning. The court ordinarily should not call and question the witness. The witness should be examined by counsel, in an order determined by the court.

ii. No Identification as Court Appointee. The witness should not ordinarily be identified as one appointed by the court.

iii. If Identified as Court Appointee. If the court determines that, in the circumstances, it is appropriate to identify the witness as a court appointee, the court should instruct the jury that:

A. It is not to give greater weight to the testimony of a court- appointed expert than any other witness simply because the court chose the expert;

B. The jury may consider the fact that the witness is not retained by either party in evaluating the witness's opinion; and

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C. The jury should carefully assess the nature of, and basis for, each witness's opinion.

Comment

Trial judges have inherent authority to appoint experts as technical advisors to assist the court. See, e.g., Reilly v. United States, 863 F.2d 149, 156-57 (1st Cir. 1988); Note, Improving Judicial Gatekeeping: Technical Advisors and Scientific Evidence, 110 HARV. L. REV. 941, 949-51 (1997). They may also appoint expert witnesses for testimonial purposes under Federal Rule of Evidence 706(c) and similar provisions in force in most states. 2 Joseph & Saltzburg, EVIDENCE IN AMERICA: THE FEDERAL RULES IN THE STATES §§ 55.2, 55.3 (Supp. 1994). This Standard applies to experts appointed in either capacity.

Courts should be reluctant to have court-appointed experts testify in jury trials. Identification of an expert with the court may artificially enhance that expert’s status and confer a false aura of authority and credibility.1 It may be difficult for a jury to understand why a court- appointed expert was retained and how the expert is being compensated. The process through which a court-appointed expert arrives at an opinion is often one from which counsel have been excluded. The result may be that neither counsel is comfortable with the approach the expert has taken.

A court-appointed expert may aid both in decision-making and in settlement. Among the myriad services such an expert may provide are: to advise the court on technical issues, to provide the jury with background information, or to offer an opinion on disputed technical issues. The appointment of experts by the court is rare, among other reasons, because of: (1) the cost involved; (2) the difficulty of finding truly neutral experts; (3) the concern that testimony from a court-appointed expert -- if the fact of court appointment is disclosed to the jury2 -- may be perceived as the court

1 In European countries in which judges decide civil cases to the exclusion of juries, court-appointed experts are not uncommon and, according to a noted comparative law scholar, “[t]he fear is spreading that courts are covertly delegating decision-making powers to an outsider without political legitimacy. … Regularly subjected to dueling experts, adjudicators need not surrender to the authority of science as blindly as those confronted with a single opinion of their chosen expert: they can decide whom to believe by engaging their ordinary judgments of witness[es]’ credibility.” Damaska, EVIDENCE LAW ADRIFT 151-52 (1997).

2 It need not be, under Fed. R. Evid. 706(c) and analogous state provisions.

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taking sides in the controversy; (4) the potential delay involved; and (5) the recurring problem that, by the time the need is known, the appointment may entail significant delay in the proceedings. See generally Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th § 11.51 (2004); Cecil & Willging, COURT-APPOINTED EXPERTS: DEFINING THE ROLE OF EXPERTS APPOINTED UNDER FEDERAL RULE OF EVIDENCE 706 (Federal Judicial Center 1993) ("Cecil & Willging, COURT-APPOINTED EXPERTS").

The court is not free to engage in substantive ex parte discussions with court-appointed experts on the merits of the case. Canon 3A(4) of the Code of Conduct for United States Judges, for example, provides: "A judge should ... except as authorized by law, neither initiate nor consider ex parte communications on the merits, or procedures affecting the merits, of a pending or impending proceeding." Subdivision (c) of this Standard is designed to afford the court the latitude it needs to communicate with the court-appointed expert while preserving the parties’ rights to be fully apprised of discussions between judge and expert pertaining to the merits.

The procedures suggested in this Standard are drawn from a variety of sources, including the Reilly case; the Federal Judicial Center's MANUAL FOR COMPLEX LITIGATION 4th § 11.51 (2004); Cecil & Willging, COURT- APPOINTED EXPERTS; and Cecil & Willging, Court-Appointed Experts, in Federal Judicial Center, REFERENCE MANUAL ON SCIENTIFIC EVIDENCE 525-71 (1994); American Bar Association Section of Litigation, National Center for State Courts & State Justice Institute, JURY TRIAL INNOVATIONS § 4.4 (Munsterman et al. eds., 2d ed. 2006). See also Note, Improving Judicial Gatekeeping: Technical Advisors and Scientific Evidence, 110 HARV. L. REV. 941, 954-58 (1997).

Most evidence codes permit the trial court, in its discretion, to disclose the fact of the appointment of the expert witness by the court. See, e.g., Fed. R. Evid. 706(c); Cal. Evid. Code § 722(a); and the numerous state evidence codes modeled on the Federal Rules. Joseph & Saltzburg, EVIDENCE IN AMERICA: THE FEDERAL RULES IN THE STATES at §§ 55.2, 55.3. However, this Standard reflects the view -- borne out by Federal Judicial Center research -- that, if the expert's court-appointed status is disclosed, "concern about undue influence [on the jury] seems reasonable." Cecil & Willging, COURT-APPOINTED EXPERTS at 51.

The court may prohibit ex parte communications between the parties and a court-appointed expert. This may be impractical where, for example, the expert needs to contact one or more parties for specimens to examine. Subdivision d. ii. is operative only if the court has not prohibited

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such contact. Subdivision d.i. contemplates that, if the court-appointed expert is to testify at trial, the expert will be subject to the same type and degree of discovery (e.g., deposition, disclosure, interrogatories) as a party- proffered expert.

7. Use of Tutorials to Assist the Court

a. Pretrial Use of Tutorials. In cases involving complex technology or other complex subject matter which may be especially difficult for non- specialists to comprehend, the court may permit or require the use of tutorials to educate the court. Tutorials are intended to provide the court with background information to assist the court in understanding the technology or other complex subject matter involved in the case. Tutorials may, but need not, seek to explain the contentions or arguments made by each party with respect to the technology or complex subject matter.

b. Selection of Type of Tutorial.

i. In any case in which the court believes one or more tutorials might be useful in assisting it in understanding the complex technology or other complex subject matter, the court should invite the parties to express their views on the desirability of one or more tutorials.

ii. Once the court decides to permit or require one or more tutorials, it should invite the parties to suggest the subject matter and format of each tutorial.

iii. If the parties cannot agree on the subject matter and format, the court should invite each party to submit a description of any tutorial it proposes and to explain how that tutorial will assist the court and why it is preferable to the tutorial proposed by another party. The court may approve one or more tutorials proposed by the parties, or the court may fashion its own tutorial after providing the parties with an opportunity to comment on the court’s proposed subject matter and format.

c. Procedures for Presentation. A court may consider the following procedures for the presentation of tutorials:

i. An in-court or recorded presentation by an expert jointly selected by the parties.

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ii. An in-court or recorded presentation by one or more experts on behalf of each party.

iii. An in-court or recorded presentation by counsel for each party.

iv. A combined in-court or recorded presentation by counsel and one or more experts on behalf of each party.

v. An in-court or recorded presentation by an expert appointed by the court, which may include cross-examination by counsel for each party.

vi. Recorded presentations that have been prepared for generic use in particular kinds of cases by reliable sources such as the Federal Judicial Center.

d. Trial Use of Tutorials. In cases involving complex technology or other complex subject matter which may be especially difficult for non- specialists to comprehend, the court may permit or require the use of tutorials to educate the court or jury during one or more stages of the trial. Trial tutorials are intended to provide the court or jury with background information to assist in understanding the technology or other complex subject matter involved in the case. Tutorials may, but need not, seek to explain the contentions or arguments made by each party with respect to the technology or complex subject matter.

e. Selection of Type of Tutorial. The court should use the process set forth in 7.b. above.

f. Procedures for Presentation.

i. In a bench trial, the court may consider using any of the procedures set forth in 7.b. above.

ii. In a jury trial, the court should consider the use of tutorials in connection with interim statements and arguments as provided in Standard 9.

iii. In both bench and jury trials, the court should provide parties with a full opportunity to present admissible evidence in support of their cases that may differ from or quarrel with information presented in a tutorial and to argue that the information presented in a tutorial should be rejected by the court or jury.

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Comment

In the context of patent cases, it is well recognized that the Court may conduct a tutorial, the purpose of which is to receive expert testimony for background and education on the technology implicated by the presented claim construction issues in assisting the Court in the task of construing the patent. See, e.g., Starpay.com L.L.C. v. Visa Int’l Serv. Assoc., No. 3-03-CU-976-L, 2005 WL 1552769, at *1 (N.D. Tex.) (citing Key Pharmaceuticals v. Hercon Laboratories, Corp., 161 F.3d 709, 716 (Fed. Cir. 1998)). Accordingly, tutorials are common in patent cases. See, e.g., Uniloc USA, Inc. v. Microsoft Corp., 447 F. Supp. 2d 177, 181 (D.R.I. 2006); Medtronic Navigation, Inc. v. Brainlab Medizinische Computersystems GMBH, 417 F. Supp. 2d 1188, 1201 (D. Colo. 2006); Takeda Chem. Indus., Ltd. v. Mylan Labs., Inc., 417 F. Supp. 2d 341, 344 (S.D.N.Y. 2006); Pergo, Inc. v. Faus Group, Inc., 401 F. Supp. 2d 515, 518 (E.D.N.C. 2005); Honeywell Int’l, Inc. v. Universal Avionics Systems Corp., 343 F. Supp. 2d 272, 279 (D. Del. 2004).

The use of tutorials is not, however, limited to patent cases, or even to technology cases. For example, in In Re Pharmaceutical Industry Average Wholesale Price Litigation, 230 F.R.D. 61, 67 (D. Mass. 2005), the Court received tutorials on the structure of the pharmaceutical markets.

Indeed, tutorials have been recognized to be so helpful in understanding complex subjects, that at least one Circuit Judge has expressed regret where the Circuit Court did not have the benefit of a tutorial that was presented to the District Court but not recorded:

I salute the district court and the parties for having held a tutorial on the technology. It was undoubtedly valuable to the district judge. The only problem is, it was unreported (which is understandable, as a principal benefit of a tutorial is the opportunity for informal exchange) and thus, it was unavailable to assist us. In future cases where such formats are used – and I encourage it, having benefited from similar tutorials when I served as a district judge – I urge district judges and litigants to consider the possibility of videotaping the tutorial for whatever assistance it may be to the court of appeals.

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Altera Corp. v. Clear Logic, Inc., 424 F.3d 1079, 1093 (9th Cir. 2005) (Rymer, J., concurring).

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PART THREE: JUDICIAL CONTROL OVER TRIAL PRESENTATION

8. Limits on Trial Presentation.

a. Procedure. Limits on trial presentation should be imposed only after the court has:

i. Made an informed analysis of the case and of the parties' plans for trial;

ii. Discussed with the parties the possibility of voluntary, self-imposed limits; and

iii. Afforded the parties the opportunity to be heard as to the amount of time, or number of witnesses or exhibits, they believe they require in order to present their positions fairly.

b. Discretion. Subject to the judge's ultimate responsibility to ensure a fair trial and to afford the parties a fair opportunity to be heard, the court should consider whether to enforce voluntary limits agreed to by the parties or to impose reasonable limits on trial presentation, including limits on:

i. The total time to be allowed each party or side for all direct and cross-examinations;

ii. The length of examination and cross-examination of particular witnesses;

iii. The number of witnesses or exhibits to be offered on a particular issue or in the aggregate; and

iv. The length of opening statements and closing arguments.

c. Notice to Parties. The court should notify the parties of any limits it intends to impose sufficiently in advance of trial to permit them to prepare their cases accordingly.

d. Factors. In fashioning trial presentation limits, the court should consider:

i. The complexity of the case;

ii. The claims and defenses of the parties;

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iii. The respective evidentiary burdens of the parties;

iv. The subject matter of evidence that is considered for limitation; and

v. Whether proposed limits allocate trial time fairly.

e. Types of Limits. If the court determines that limits are appropriate, it is generally preferable to limit the total amount of time allocated to each party or side, rather than to limit the number of witnesses or exhibits, or the duration of a particular examination.

f. Modification. The court should reassess imposed limits in light of developments during trial, and may grant an extension upon a showing of good cause. After trial has commenced, the court ordinarily should not shorten imposed limits, in light of the parties' reliance thereon, absent disposition of claims or defenses as to which evidence or argument was planned.

g. Methodology. If the Court determines to limit the total time allowed to each party, it should enter a written order setting forth those limits and describing the methodology for implementing them.

i. The Order should make clear what activities are and are not included in the total time limit. Specifically, it should state whether the limit applies to opening statements, closing statements, all witness examinations (whether conducted live in Court or by the reading or playing of previously taken testimony), and time spent reading evidence into the record or publishing evidence to the jury. In general, the time limit should not apply to breaks, time spent arguing motions, objections or discussing other matters with the Court.

ii. The Order should designate a neutral person or persons who will be in charge of timing the proceedings. That person could be the Judge, the court reporter, or some designated courtroom official such as a courtroom deputy or clerk.

iii. The Order should state that at the end of each trial day, the Court should announce the total elapsed time to be charged to each party for that day and the total time remaining for each party. Those times should be noted for the record at the end of each trial day. The Order should require that any disputes about elapsed time should be raised and resolved immediately.

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Comment

The ABA Principles for Juries and Jury Trials provide that the Court “after conferring with the parties, should impose and enforce reasonable time limits on the trial or portions thereof.” See Principle 12A. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf. This standard suggests for the Court several steps and procedures in furtherance of that objective.

The power of the court to impose reasonable time limits on a trial derives from the inherent power of the court and from codified sources such as Fed. R. Civ. P. 16(c)(4) and (15), Fed. R. Evid. 403 and 611(a), and analogous provisions in force in most states. MCI Communications Corp. v. AT&T Co., 708 F.2d 1081, 1170-71 (7th Cir.), cert. denied, 464 U.S. 891 (1983); Hicks v. Commonwealth, 805 S.W.2d 144, 151 (Ky. App. 1991); Varnum v. Varnum, 586 A.2d 1107, 1114-15 (Vt. 1990); Federal Judicial TH Center, MANUAL FOR COMPLEX LITIGATION 4 §§ 11.644, 12.35 (2004); 2 Joseph & Saltzburg, EVIDENCE IN AMERICA: THE FEDERAL RULES IN THE STATES §§ 13.2, 13.3 (Supp. 1994); 2 Id. §§ 45.2, 45.3.

This Standard is premised on the principle that courts should be reluctant to interfere with counsel's control over the presentation of their case and should ensure that each side has the opportunity to present its case fully and fairly, and on the corollary that trial courts therefore "should not exercise this discretion as a matter of course," Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 609 (3d Cir. 1995), and witnesses should not be excluded "on the basis of mere numbers." MCI Communications Corp. v. AT&T Co., 708 F.2d 1081, 1170-71 (7th Cir.), cert. denied, 464 U.S. 891 (1983). In many cases, efficient management of court time can obviate the need for the imposition of time limits. See generally FINAL REPORT OF THE CIVIL JUSTICE REFORM ACT ADVISORY GROUP FOR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA at Part D, Recommendations 31-34, pp. 66-68 (1993).

Tailored judicial scrutiny is necessary before any limits are imposed. The court should ascertain at the outset whether counsel can voluntarily satisfy the court's reasonable concerns about its docket and the jury since, by definition, they know the case far more intimately than the court. For the same reason, if limits are appropriate, it is generally preferable to limit the total amount of time allocated to each party or side, rather than to limit the number of witnesses or exhibits, or the duration of a

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particular direct or cross-examination. See Hon. Pierre N. Leval, From the Bench: Westmoreland v. CBS, 12 LITIGATION No. 1 at 7 (Fall 1985); Hon. William W. Schwarzer, Reforming Jury Trials, 132 F.R.D. 575, 579 (1990); American Bar Association Section of Litigation, National Center for State Courts & State Justice Institute, JURY TRIAL INNOVATIONS § 4.1 (Munsterman et al. eds., 2d ed. 2006).

Before imposing limits, the court should indicate to counsel its own view of the time that should be required for trial in cases in which the court believes that counsel’s assessment is unrealistic or that the time requested is so clearly excessive as to amount to an unacceptable drain on public resources and imposition on the jury. The court should provide counsel with an opportunity to reassess their time requirements and seek, where possible, to reach a consensus on a realistic trial schedule before imposing its own view. In no event should the court permit any party to be prejudiced because of arbitrary time limits.

The substance of this Standard is drawn in part from the case law (see, e.g., General Signal Corp. v. MCI Telecommunications Corp., 66 F.3d 1500, 1508 (9th Cir. 1995); Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 609 (3d Cir. 1995)); the Federal Judicial Center's MANUAL FOR COMPLEX LITIGATION 4th §§ 12.24, 12.35 (2004); and ABA TRIAL MANAGEMENT STANDARDS 1, 2 and 3 (1992). 9. Interim Statements and Arguments.

a. Discretion. In cases of appropriate complexity, the court should afford counsel the opportunity during trial to address the jury to comment on, or to place in context, the evidence that has been, or will be, presented.

b. Factors. In deciding whether to permit counsel to address the jury during trial, the court should consider:

i. The duration of the trial;

ii. The number and complexity of the legal and factual issues; and

iii. The volume and complexity of the evidence.

c. Procedure.

i. The court should allow each side to address the jury.

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ii. Time should be allocated equally to each side or equitably if there are conflicting interests among parties on the same side.

iii. The court may:

A. Allocate to each party or side a total amount of time that may be used at counsel's discretion at any reasonable point during the trial;

B. Allocate to each party or side a certain amount of time that must be used within prescribed intervals or will be forfeited; or

C. Schedule interim addresses at prescribed points during the trial.

iv. If timing is left to counsel's discretion pursuant to subdivision c. iii. A. or B., counsel may not choose a time that interferes with another party's presentation of evidence or with the court's schedule.

v. Counsel's remarks should be confined to the meaning or significance of the evidence and its relationship to the issues.

vi. The court should remind the jury of the difference between evidence and counsel's statements.

Comment

The ABA Principles for Juries and Jury Trials identify “mini-or interim openings and closings” as a trial technique to be considered by the parties and courts to enhance juror comprehension. See Principle 13G. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf. This standard outlines suggested procedures for implementing such openings and closings.

Permitting counsel to address the jury to comment on the evidence in long or complex cases, or cases dealing with particularly complicated evidence or issues, is endorsed by the Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th §§ 12.21, 12.34 (2004), and is not uncommon. See, e.g., Consorti v. Armstrong World Indus., 72 F.3d 1003, 1008 (2d Cir. 1995); ACandS, Inc. v. Godwin, 340 Md. 334, 407-09, 667 A.2d 116, 152-53 (1995). See also Robert E. Litan (ed.), VERDICT:

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ASSESSING THE CIVIL JURY SYSTEM 389 (Brookings 1993); Hon. Robert M. Parker, Streamlining Complex Cases, 10 REV. LITIG. 547, 553-54 (1991); Hon. Pierre N. Leval, From the Bench: Westmoreland v. CBS, 12 LITIGATION No. 1 at 66-67 (Fall 1985). This Standard adopts the flexible approach urged by these authorities, recognizing that juror comprehension may substantially be advanced by affording counsel the opportunity to summarize and place in context evidence that has been, or is to be, presented.

Whether these interim remarks to the jury should be characterized as "interim argument," which is the description frequently found in the cases (see, e.g., Armstrong and ACandS, supra), or "supplementary opening statements," which is the Federal Judicial Center's phrase (Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th § 12.34 (2004)), is less important than a clear recognition of the purpose: to afford counsel the opportunity to comment on the meaning and significance of evidence as it is presented. Highly inflammatory rhetoric is out of place. See, e.g., ACandS, 340 Md. at 407-09, 667 A.2d at 152-53.

10. Order of Proceedings. In cases of appropriate complexity, the court should exercise its discretion to alter the traditional order of trial where that will enhance jury comprehension and recollection or facilitate the effective presentation of evidence and argument, without unfair advantage to either side. Among the alternatives the court should consider are:

a. Venire Panel. In advance of voir dire, presenting to the entire venire panel:

i. Preliminary instructions

ii. Opening statements (in either abbreviated or complete form).

b. Issue Organization. Organizing the trial by issue, or clusters of issues, with each party presenting its opening statement and evidence on a designated subject matter before proceeding to the next.

c. Interim Instructions. Giving interim instructions.

d. Interim Statements and Arguments. Permitting interim statements and arguments (see Standard 9, supra).

e. Sequential Verdicts. Submitting issues or claims to the jury sequentially, if a decision on one issue may render others moot or may facilitate

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settlement, or if alternative claims involve differing or conflicting theories of liability or damages.

f. Post-Impasse Argument. Permitting additional arguments by counsel after the jury has reached an impasse in deliberations.

Comment

The ABA Principles for Juries and Jury Trials further address the giving of preliminary instructions. See Principle 6C. 1. and 2, and Comment Subdivision C. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf.

The court is vested with the inherent power to control the mode and order of proceedings before it, a power that is codified in part in Fed. R. Civ. P. 16(c)(13)-(14), 42, 50 and 52, and Fed. R. Evid. 611(a), and analogous provisions in force in most states. See, e.g., 2 Joseph & Saltzburg, EVIDENCE IN AMERICA: THE FEDERAL RULES IN THE STATES §§ 45.2, 45.3 (Supp. 1994).

This Standard is drawn from a variety of sources in addition to the general precepts of Fed. R. Civ. P. 16(c)(13)-(14), 42, 50 and 52, and Fed. R. Evid. 611(a), including Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th §§ 12.34, 12.432 (2004) (sequencing of evidence and arguments; sequential verdicts; preliminary instructions); American Bar Association Section of Litigation, National Center for State Courts & State Justice Institute, JURY TRIAL INNOVATIONS § 6.11 (Munsterman et al. eds., 2d ed. 2006) (post-impasse argument); Hon. William W. Schwarzer, Reforming Jury Trials, 132 F.R.D. 575, 594-96 (1990) (issue organization; interim statements or summations); and Saltzburg, The Quality of Jury Decisionmaking, in Robert E. Litan (ed.), VERDICT: ASSESSING THE CIVIL JURY SYSTEM 361 (Brookings 1993) (sequential verdicts).

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11. Demonstrative Evidence.

a. Preview. As with all other exhibits, the court should afford each party an adequate opportunity to review, and interpose objections to, demonstrative evidence before it is displayed to the jury.

b. Unwieldy Evidence. Voluminous, complicated or other information that cannot conveniently be examined in court should be presented, when practicable, in the form of a chart, diagram, graph or other demonstrative evidence. At the request of a party, the court should provide guidance concerning admissibility before substantial expense is incurred.

Comment

Demonstrative evidence is the generic label applied to exhibits that share the common characteristic of visualizing for the factfinder data that have been, or can be, admitted into evidence. Common types include diagrams, charts, graphs, models, photographs, maps, plats, videotapes, animations, and computer simulations. Although demonstrative evidence has occasionally been contrasted with "real" evidence, most courts now hold that in some circumstances, and with a proper foundation, demonstrative evidence may be admitted for all. For example, a chart that summarizes voluminous, admissible data may be independently admissible into evidence under Rule 1006 of the Federal Rules of Evidence and analogous provisions in force in most states (2 Joseph & Saltzburg, EVIDENCE IN AMERICA: THE FEDERAL RULES IN THE STATES §§ 70.2-70.3 (Supp. 1994)). Similarly, photographs are admissible as substantive evidence. United States v. May, 622 F.2d 1000, 1007 (9th Cir.), cert. denied, 449 U.S. 984 (1980); State v. Pulphus, 465 A.2d 153, 161 (R.I. Sup. Ct. 1983); 3 Wigmore, EVIDENCE § 790 (Chadbourn rev.).

Subdivision a. Because demonstrative evidence can be quite potent, it should not be shown to the jury until the court is satisfied that the evidence is admissible. This Standard therefore articulates the practical necessity that the opponent be afforded the opportunity to view the exhibit - - and raise any objection -- before it is shown to the jury. This Standard reflects the procedure suggested by the case law and the Federal Judicial Center. See, e.g., Robinson v. Missouri, 16 F.3d 1083, 1088 (10th Cir. 1994); Brandt v. French, 638 F.2d 209, 212 (10th Cir. 1981); Mills v. Nichols, 467 So. 2d 924, 930-31 (Miss. Sup. Ct. 1985); Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th § 12.31 (2004). Under the 1993 amendments to the Federal Rules of Civil Procedure, Rules

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26(a)(2)(B)-(C) and 26(a)(3)(C) require the pretrial disclosure of all non- impeachment exhibits, including demonstrative evidence. See also Standard 20 (Motions in Limine).

Subdivision b. Generally, "[c]ourts look favorably upon the use of demonstrative evidence because it helps the jury understand the issues raised at trial." People v. Burrows, 148 Ill. App. 3d 208, 213, 498 N.E.2d 682 (1986). See also Hon. William W. Schwarzer, Reforming Jury Trials, 132 F.R.D. 575, 588 (1990) (“Much evidence becomes more comprehensible when presented with visual aids, such as a chart summarizing data, a chronology, an enlarged picture of an object, a diagram of a building, or a map.”). Exercising powers such as those codified in Federal Rule of Evidence 611(a), which most states have adopted (2 Joseph & Saltzburg, EVIDENCE IN AMERICA: THE FEDERAL RULES IN THE STATES §§ 45.2-45.3 (Supp. 1994)), the court should encourage counsel to package information in the most concise and understandable format. At the same time, because the reduction of voluminous or complicated data into demonstrative form can be expensive, the court should provide a requesting party with a preliminary ruling or at least parameters of admissibility before substantial expense is incurred. This subdivision reflects the view set forth in the Federal Judicial Center's MANUAL FOR COMPLEX LITIGATION 4th §§ 12.31, 12.32 (2004), and in American Bar Association Section of Litigation/Brookings Institution symposium report, CHARTING A FUTURE FOR THE CIVIL JURY SYSTEM 22 (1992).

12. Summary Exhibits and Witnesses.

a. Discretion. In cases of appropriate complexity, if it will assist the jury to understand the evidence or to determine a fact in issue, the court may receive for illustrative purposes

i. a summary of previously-introduced evidence in the form of a chart, diagram, graph or other demonstrative exhibit, and

ii. accompanying testimony explaining the exhibit and synopsizing the evidence that it summarizes, provided that:

A. all of the summarized items have previously been received in evidence;

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B. the preparer of the summary, or a person suitably knowledgeable as to its preparation and contents, is or has been made available for cross-examination; and

C. the summary and any accompanying testimony are offered in a party's case-in-chief or the court finds exceptional circumstances that warrant use of summary evidence during rebuttal.

b. Factors. Among the factors the court may consider in deciding whether to receive a summary pursuant to Subdivision a. are:

i. The length of the trial;

ii. The number of the issues;

iii. The complexity of the issues;

iv. The number of witnesses;

v. The duration and contents of the testimony;

vi. The number and volume of the exhibits;

vii. The contents of the exhibits;

viii. The accuracy of the summary; and

ix. Whether the proponent has made the summary available for inspection by adverse parties sufficiently in advance of its offer into evidence to provide the adverse parties with a fair opportunity to challenge it.

c. Marked as Exhibit. The summary should be marked as an exhibit whether or not the court admits the summary into evidence. If an objection to the summary is made and overruled, either party should be permitted to make the summary part of the record on appeal.

d. Cautionary Instructions. Prior to receiving a summary pursuant to Subdivision a, the court should instruct the jury that:

i. The summary is not independent evidence but provided only to assist them in evaluating the evidence;

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ii. The jury should closely examine the evidence that is summarized and the accuracy of the summary; and

iii. The jury should disregard the summary to the extent that it finds the summary inaccurate or rejects the underlying evidence that is summarized.

Comment

This Standard addresses illustrative, not substantive, summaries. Accordingly, it does not address exhibits that are admissible for substantive purposes pursuant to Federal Rule of Evidence 1006 or analogous provisions in force in most states. An exhibit offered pursuant to Rule 1006 must satisfy the requirements of that rule — namely, the underlying exhibits (i) must be "voluminous," (ii) must consist of "writings, recordings, or photographs," and (iii) must be admissible, but (iv) need not actually have been admitted into evidence as long as they have reasonably been "made available for examination or copying, or both" in advance of trial.

This Standard deals instead with illustrative exhibits offered pursuant to such rules as Fed. R. Evid. 61l(a) (and state counterparts in force in most jurisdictions) to summarize the evidence that has previously been offered in evidence at trial. It is both broader and narrower than a Rule 1006 summary. An illustrative summary under this Standard is broader than a Rule 1006 summary in that it need not, for example, summarize only "writings, recordings, or photographs" but may also summarize prior trial testimony, including expert opinion. An illustrative summary under this Standard is narrower than a Rule 1006 summary in that, for example, the items summarized must actually have been received in evidence, while the items summarized in a Rule 1006 summary need merely be admissible and have been made available to the opposition.

This Standard is derived from substantial case law addressing the use, for illustrative purposes, of summary exhibits and witnesses. As reflected in the Standard, the cases generally require that the summarized evidence be received for substantive purposes before the summary is allowed; that the summary be offered during the case in chief— rather than as an anticipatory closing shortly before deliberations begin; and that an appropriate limiting instruction be given to the jury. The cautionary instruction is also drawn from the case law. See generally United States v. Casas, 356 F.3d 104 (1st Cir. 2004); United States v. Fullwood, 342 F.3d 409, 413-414 (5th Cir. 2003); United States v. Buck, 324 F.3d 786, 790-92

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(5th Cir. 2003); United States v. Griffin, 324 F.3d 330, 348-350 (5th Cir. 2003); United States v. Bishop, 264 F.3d 535, 547 (5th Cir. 2001) cert, denied, 535 U.S. 1016 (2002); United States v. Johnson, 54 F.3d 1150, 118 (4th Cir. 1995); United States v. Sutherland, 929 F.2d 765, 779-90 (1st Cir. 1991); United States v. Lewis, 759 F.2d 1316, 1329 n.6 (8th Cir. 1985); United States v. Radseck, 718 F.2d 233, 237-238 (7th Cir. 1983), cert, denied 465 U.S. 1029 (1984); United States v. Lemire, 720 F.2d 1327, 1346-1350 (D.C. Cir. 1983); United States v. Atchley, 699 F.2d 1055, 1059 (11th Cir. 1983); United States v. Behrens, 689 F.2d 154, 161 (10th Cir.), cert, denied 103 S. Ct. 573 (1982). See generally Joseph, MODERN VISUAL EVIDENCE § 9.2 (Supp. 2003).

13. Multiple Parties & Questioning. In a case involving multiple parties, the court should encourage the parties to cooperate in, coordinate, and streamline, the presentation of evidence and the making of objections, and it should be receptive to their efforts to do so. Unless the parties agree to the contrary, the court should permit each separately-represented party to develop the testimony of each witness, subject to reasonable time limitations and avoidance of repetition.

Comment

In any case involving multiple plaintiffs, defendants or other parties on the same side of the caption, there is sometimes an understandable temptation to restrict counsel for co-parties from independently exploring the same subject matter. There is an inherent tension between the systemic need to avoid the needless presentation of cumulative evidence and the parties' need to ensure that salient evidence has been adequately elucidated. Because the parties are most familiar with the evidence, it is sensible in the first instance to encourage them to attempt to reach agreement on procedures that will facilitate the presentation of evidence -- e.g., by designating principal examiners or cross-examiners for particular witnesses -- and to permit an objection made by one party to extend to all parties on the same side of the caption. Except in unusual circumstances, and subject to reasonable time limitations and avoidance of repetition, the court should ordinarily be receptive to the parties' efforts in this regard.

While it is appropriate and necessary for the judge to be vigilant about avoiding waste of court time, the judge should simultaneously be sensitive to arguments that certain subject matter has not been covered, or has been only inadequately covered, by prior questioning. The court should also take into account the existence of any differences in position among parties that are ostensibly aligned in interest (whether or not those differences are in the nature of, or have matured to, cross-claims, third-

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party claims or any other sort of formal adversity) and the risk of potential prejudice if apparent coordination by counsel on questioning might generate an inference on the part of the jurors going to the merits (e.g., in a case alleging civil conspiracy). Hence, if the parties are unable to reach agreement, each party should presumptively be afforded an opportunity to examine each witness in a non-repetitive, expeditious fashion.

With respect to voir dire in cases involving multiple parties, See Principle 11B. 2. of the ABA Principles for Juries and Jury Trials. Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf.

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PART FOUR: EXPERT AND SCIENTIFIC EVIDENCE

14. "Qualifying" Expert Witnesses. The court should not, in the presence of the jury, declare that a witness is qualified as an expert or to render an expert opinion, and counsel should not ask the court to do so.

Comment

It is not uncommon for a proponent of expert testimony to tender an expert witness to the court, following a recitation of the witness's credentials and before eliciting an opinion, in an effort to secure a ruling that the witness is "qualified" as an expert in a particular field. The tactical purpose, from the proponent's perspective, is to obtain a seeming judicial endorsement of the testimony to follow. It is inappropriate for counsel to place the court in that position.

A judicial ruling that a proffered expert is "qualified" is unnecessary unless an objection is made to the expert's testimony. If an objection is made to an expert's qualifications, relevancy of expert testimony, reliability or any other aspect of proffered expert testimony, the court need only sustain or overrule the objection. When the court overrules an objection, there is no need for the court to announce to the jury that it has found that a witness is an expert or that expert testimony will be permitted. The use of the term "expert" may appear to a jury to be a kind of judicial imprimatur that favors the witness. There is no more reason for the court to explain why an opinion will be permitted or to use the term "expert" than there is for the court to announce that an out-of-court statement is an excited utterance in response to a hearsay objection.

Because expert testimony is not entitled to greater weight than other testimony, the practice of securing what may appear to be a judicial endorsement is undesirable. As United States District Judge Charles R. Richey has observed in a related context, "It may. be an inappropriate judicial comment ... for the court to label a witness an 'expert.'" Hon. Charles R. Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word "Expert" Under the Federal Rules of Evidence in Civil and Criminal Jury Trials, 154 F.R.D. 537, 554 (1994). The prejudicial effect of this practice is accentuated in cases in which only one side can afford to, or does, proffer expert testimony.

When the Advisory Committee on the Federal Rules of Evidence recommended what became the December 1, 2000 amendment to Fed. R.

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Evid. 702, it cited Judge Richey and ended the Advisory Committee Note accompanying the amendment with the following paragraph:

The amendment continues the practice of the original Rule in referring to a qualified witness as an "expert." This was done to provide continuity and to minimize change. The use of the term "expert" in the Rule does not, however, mean that a jury should actually be informed that a qualified witness is testifying as an "expert." Indeed, there is much to be said for a practice that prohibits the use of the term "expert" by both the parties and the court at trial. Such a practice "ensures that trial courts do not inadvertently put their stamp of authority" on a witness' opinion, and protects against the jury's being "overwhelmed by the so-called 'experts.'" Hon. Charles Richey, Proposals to Eliminate the Prejudicial Effect of the Use of the Word "Expert" Under the Federal Rules of Evidence in Criminal and Civil Jury Trials, 154 F.R.D. 537, 559 (1994) (setting forth limiting instructions and a standing order employed to prohibit the use of the term "expert" in jury trials) .

This Standard suggests that the court should not use the term "expert" and that the proponent of the evidence should not ask the court to do so. The party objecting to evidence also has a role to play in assuring that the court does not appear to be anointing a witness as an "expert." A party objecting that a witness is not qualified to render an opinion or that a subject matter not the proper subject of expert testimony should avoid using the word "expert" in the presence of the jury. Any objection in the presence of the jury should be "to the admissibility of the witness' opinion." If the objecting party objects that testimony is inadmissible "expert" testimony and the court overrules the objection, it may appear that the judge has implicitly found the witness to be an "expert." When an objection is made, if the proponent wishes to argue the matter, it should be outside the hearing of the jury. See Fed. R. Evid. 103 (c ) (providing that inadmissible evidence should not be heard by the jury).

The utility of the Standard can be undermined if the court is not careful to excise the term "expert" from the instructions it gives to the jury before it deliberates. Juries can be fully instructed on their role in assessing credibility without any mention of the term. The following instruction is illustrative:

Some witnesses who testify claim to have special knowledge, skill, training, experience or education that enable them to offer opinions or inferences concerning issues in dispute. The fact that a witness has knowledge, skill, training, experience

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or education does not require you to believe the witness, to give such a witness's testimony any more weight than that of any other witness, or to give it any weight at all. It is important for you to keep in mind that the witness is not the trier of fact. You are the trier of fact. It is for you to decide whether the testimony of a witness, including any opinions or inferences of the witness, assists you in finding the facts and deciding the issues that are in dispute. And, it is for you to decide what weight to give the testimony of a witness, including any opinions or inferences of the witness.

6 Stephen A. Saltzburg, Michael M. Martin, & Daniel J. Capra, Federal Rules of Evidence Manual 144 ((8th ed. 2002) .

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PART FIVE: MOTIONS IN LIMINE

15. Motions & Rulings.

a. Timing & Subjects. In advance of trial, counsel should seek, and the court should provide, judicial resolution of significant evidentiary and legal issues that are susceptible of pretrial adjudication and are likely to have an impact of consequence on the trial. Counsel should refrain from making, and the court should defer ruling on, any motion in limine if the nature of the evidence at issue cannot fairly be discerned, or its relevance or significance determined, prior to trial.

b. Conferral Requirement. Counsel should be required to confer in an effort to resolve motions in limine before filing any with the court.

c. Rulings. The court should issue its ruling before opening statements begin, stating for the record whether its decision is final or whether it prefers to revisit the issue during trial if the objection or proffer is renewed.

Comment

The use of the motion in limine (literally a "threshold motion") to secure a ruling on the admissibility of evidence prior to trial is firmly established in state and federal court. See generally Fed. R. Civ. P. 16(c)(3)-(4) and analogous state provisions; Saltzburg, Tactics of the Motion in Limine, 9 LITIGATION No. 4 at 17 (1983); Hyde, The Motion in Limine, 27 U. FLA. L. REV. 531 (1975). This Standard is predicated on the recognition that certain types of evidentiary rulings often require context -- e.g., whether certain evidence is: (1) relevant; (2) more probative than prejudicial; (3) cumulative; (4) unduly delaying, time-consuming or confusing; and (5) sufficiently trustworthy to fall within certain hearsay exceptions.

The Standard also operates to mitigate some of the practical problems associated with the fact that the rules as to the appealability of in limine decisions are far from clear. Compare United States v. Vest, 842 F.2d 1319, 1325 (1st Cir.) (absence of objection at trial is "fatal"), cert. denied, 488 U.S. 965 (1988); Allison v. Ticor Title Ins. Co., 979 F.2d 1187, 1200 (7th Cir. 1992) ("the law in this circuit is that an unsuccessful motion in limine does preserve the issue for appeal"); American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 324 (3d Cir. 1985) ("test is whether an objection at trial would have been more in the nature of a

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formal exception or in the nature of a timely objection calling the court's attention to a matter it need consider"); Palmerin v. City of Riverside, 794 F.2d 1409, 1411 (9th Cir. 1986) (circuit's position is "unclear").

This issue can largely be resolved if the court makes it clear whether its pretrial ruling is final. See, e.g., Rosenfeld v. Basquiat, 78 F.3d 84, 90 (2d Cir. 1996) ("Because the district court at the outset made a definitive ruling ... on the admissibility..., there was no need ... to challenge admissibility again during the trial when plaintiff asked to introduce the testimony."). This is consistent with the trend toward efficient judicial case management through effective and meaningful pretrial proceedings. A clear record not only permits parties to plan their trial strategy -- and, potentially, their approach to settlement -- but also avoids unnecessary appellate issues relating to appealability.

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PART SIX: BENCH TRIALS

16. Submissions & Rulings.

a. Ruling from Bench. In deciding the appropriateness of ruling from the bench at the conclusion of a trial to the court, the judge should consider the duration of the trial, the complexity of the legal and factual issues involved, the trial briefs, pretrial order or other submissions previously received from the parties, and the prospective advantage afforded by an opportunity to review the transcript, and to receive post-trial submissions from the parties, before ruling. Rulings should be made in a timely fashion.

b. Submissions from Counsel. Prior to rendering its decision, the court should permit counsel to furnish an oral or written statement of position on the law and facts. If complicated legal or factual issues are involved, and depending on the nature and extent of other submissions previously received, the court should ordinarily invite the parties to submit proposed findings of fact and conclusions of law (or like submissions however denominated under applicable law).

Comment

The desire to issue decisions promptly should be tempered by the realization that, as a trial progresses, it is not necessarily a great deal easier for the court than for a jury to keep in mind all of the evidence, and to apply the law to it, particularly where complex legal and factual issues are involved. The present Standard urges the court to permit the parties to submit proposed findings and conclusions to facilitate the decisional process. At the same time, this Standard recognizes that, in particular cases, the parties’ prior submissions may suffice and the cost and additional delay will not offset the potential benefit of written post-trial submissions.

17. Continuity of Proceedings. Subject to the exigencies of its calendar and the needs of the parties, the court should endeavor to hear bench trials without lengthy continuances and interruptions in the proceedings, striving for the same level of continuity it insists on in jury trials.

Comment

Jury trials are ordinarily tried continuously, from opening statement to closing argument, in deference to the schedules of the jurors and in recognition of the adverse effect that lengthy continuances have on jury

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comprehension. Bench trials, in contrast, are sometimes tried very sporadically, with days or weeks intervening between witnesses or in the midst of a single witness's testimony. This approach not only causes hardship to the parties -- who must pay for constant refreshers of counsel -- and to the witnesses, whose schedules may repeatedly be interrupted by readiness alerts, but can also have an adverse effect on the judicial finder of fact.

This Standard takes the position that, subject to the exigencies of its calendar, the court should endeavor to try bench trials in the same continuous fashion that it tries jury trials. It recognizes, however, that in some circumstances the needs of the parties -- e.g., the availability of witnesses or the most expeditious sequencing of the proceedings (see Standard 10) -- may warrant an exception to the presumption that bench trials ought to be tried continuously. See generally FINAL REPORT OF THE CIVIL JUSTICE REFORM ACT ADVISORY GROUP FOR THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA at Part D, Recommendation 31, pp. 66-67 (1993).

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PART SEVEN: GENERAL

18. Electronic Filing.

The court should consider the use of electronic filing processes as recommended by the American Bar Association in its Standards Relating to Court Organization, Standard 1.65, "Court Use of Electronic Filing Processes.”

Comment

This Standard formerly related to computer-readable submissions and provided “the Court should consider requiring the parties to serve and file court papers in computer readable form in addition to, or in lieu of, hardcopy, unless doing so would work undue hardship on a party.”

On February 9, 2004, the ABA House of Delegates adopted Standard 1.65, pertaining to Court use of electronic filing processes. That Standard provides in pertinent part:

Because of the benefits accruing to the courts, the Bar and the public from the use of electronic records, courts should implement electronic filing processes. In doing so, they should follow certain general principles, adopt rules and implement electronic filing processes as follows…”

The Updated Standard has been updated to comport with the ABA Standard Relating to Court Organization, Standard 1.65.

19. Televised Court Proceedings. In deciding whether or in what respects to permit a court proceeding to be televised, where that is permitted by applicable law, the court should consider all relevant factors, including:

a. The identity of the parties;

b. The nature and subject matter of the proceeding, including any significant social, political or legal issues involved, and any public interest served by televising it;

c. The identity of participants to the proceeding, including whether witnesses, jurors or minors are involved;

d. The extent and duration of contemplated television coverage, including:

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i. Whether the entirety of the proceeding, or only portions, would be televised; and

ii. What the broadcast equipment should, and should not, disseminate;

e. The impact of television coverage on the proceeding and any prospective later proceeding (such as trial), including any potential prejudice to:

i. The importance of maintaining public trust and confidence in, and promoting public access to, the judicial system;

ii. The advancement of a fair trial;

iii. The ability to impanel an impartial jury at the time or subsequently; and

iv. The rights of any party, prospective witness, victim, juror or other participant, including any right to privacy, confidentiality or witness sequestration.

f. The impact of television coverage on any law enforcement activity;

g. The objections of any party, prospective witness, victim, juror or other participant in the proceeding; and

h. The physical structure of the courtroom, including whether broadcast equipment can be installed and operated without disturbance to the proceeding or any other proceeding in the courthouse.

Comment

Debate has long raged over whether televising of court proceedings should be permitted. See, e.g., Hunt, Cameras in the Courts After O.J.--A Mixed Legacy, 22 LITIGATION NEWS No. 2 at 16 (Jan. 1997); Note, Electronic Media Access to Federal Courtrooms: A Judicial Response, 23 U. MICH. J.L. REF. 769 (1990); Note, Cameras and the Need for Unrestricted Electronic Media Access to Federal Courtrooms, 69 S. CAL. L. REV. 827 (1996). Many state courts permit the practice, in the discretion of the trial judge. See, e.g., Cal. Rule 980; McKinney's 1996 New York Rules of Court § 131. Although the Judicial Conference of the United States in March 1996 adopted a resolution "strongly urging" each federal judicial council to adopt an order prohibiting television coverage of district

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court proceedings, some federal judges permit it, and one has found a "presumptive First Amendment right of the press to televise as well as publish court proceedings, and of the public to view those proceedings." Katzman v. Victoria's Secret Catalog Div., 923 F. Supp. 580, 589 (S.D.N.Y. 1996).

It is not the intent of these Standards to take a position on the pros and cons of televising judicial proceedings, but simply to articulate the factors to be considered if the court is weighing whether to do so. The criteria set forth in this Standard are drawn from the cases and from a variety of court rules. Cal. Rule 980; McKinney's 1997 New York Rules of Court § 131.4(c); former S.D.N.Y./E.D.N.Y. Gen. Rules, App. D., R. 4(c); Katzman, 923 F. Supp. at 587-88; Marisol A. v. Giuliani, No. 95 Civ. 10533 (RJW), 1996 WL 91638 (S.D.N.Y. Mar. 1, 1996).

In implementing this Standard, the Court should be mindful of Principle 7C. of the ABA Principles for Juries and Jury Trials that provides:

If cameras are permitted to be used in the courtroom, they should not be allowed to record or transmit images of the jurors’ faces.

Commentary for the ABA Principles is available at http://www.abanet.org/jury/pdf/final%20commentary_july_1205.pdf.

20. Courtroom Technology.

a. Receptivity. Judges should be receptive to using technology in managing the trial and the presentation of evidence.

b. Hardware. The parties should be encouraged to agree on common courtroom hardware, consistent with their rights to confidentiality of, and exclusive access to, work product and privileged information.

Comment

Subdivision a. of this Standard is modeled on ABA TRIAL MANAGEMENT STANDARD 9 (1992). It is also the recommendation made in the American Bar Association Section of Litigation/Brookings Institution symposium report, CHARTING A FUTURE FOR THE CIVIL JURY SYSTEM 19- 20 (1992). See Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th §§ 11.645, 12.32 (2004).

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Subdivision b. recognizes that there is a finite amount of space available in any courtroom and that certain hardware can be shared by the parties without risk of divulging privileged or protected information -- e.g., videotape recorders, monitors, and easels. To the extent that the amount of hardware can be contained, it is in the interests of all concerned to limit it.

21. Videotaped Testimony.

a. Edited by Subject Matter.

i. If it will assist the jury to understand the evidence or to determine a fact in issue, the court should permit the parties to edit and present videotaped testimony by subject matter.

ii. The testimony of a single witness, or of multiple witnesses, relating to designated subject matter may be combined into a single presentation.

b. Advance Ruling. Objections to, and rulings on, the admissibility of videotaped testimony should be made sufficiently in advance of its presentation to the jury to permit it to be edited to reflect the court's rulings.

Comment

This Standard operates to apply the same rules to videotape that already apply to textual depositions. It is well settled that "[v]ideotape is generally more effective [than reading a transcript] for the presentation of deposition testimony, for impeachment and rebuttal, and for reference during argument." Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th § 22.333 (2004), citing Michael J. Henke, The Taking and Use of Videotaped Depositions, 16 AM. J. TRIAL ADVOC. 151, 165 (1992) and Joseph, MODERN VISUAL EVIDENCE § 3.03[2][f] (1984; Supp. 1997). See, e.g., Sandidge v. Salen Offshore Drilling Co., 764 F.2d 252, 259 n.6 (5th Cir. 1985); United States v. Tunnell, 667 F.2d 1182, 1188 (5th Cir. 1982); Weiss v. Wayes, 132 F.R.D. 152, 154-55 (M.D. Pa. 1990); Rice's Toyota World v. S.E. Toyota Dist., 114 F.R.D. 647, 649 (M.D.N.C. 1987). This Standard addresses only one of the myriad of issues associated with the introduction of videotaped deposition evidence.

This Standard is drawn from a variety of sources, including MANUAL FOR COMPLEX LITIGATION 4th § 12.333 (2004); MODERN VISUAL EVIDENCE § 3.03[2][c]; and Hon. Robert M. Parker, Streamlining Complex Cases, 10 REV. LITIG. 547, 552 (1991).

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22. Organizing the Complex Case for Trial.

a. Effective Pre-Trial Management. In complex cases, it will assist the ultimate decision-making by the trier-of-fact, whether in a jury or bench trial, if the parties and the Court work closely together from the inception of the case to encourage prompt and meaningful judicial involvement in organizing the complex case for trial through effective pre-trial management.

b. Cooperation Amongst Counsel and the Court. Complex litigation places burdens on both the Court and litigants in terms of proper management of both judicial resources and the resources of the parties. Court supervision and control should be dispensed in the context of mutual cooperation and input between the Court and the attorneys that addresses and is reflective of the needs of both the Court and the parties.

c. Input to the Court. Counsel for the parties should assist the Court in becoming familiar with the substantive issues involved in the complex case at an early date.

i. The Court should request and the parties should submit at an early date a joint status report that includes a proposed Case Schedule and Litigation Plan that outlines the nature and complexity of the case, and

ii. Prior to the issuance of a scheduling order in the case, the Court should conduct a scheduling conference during which the Court and counsel discuss implementation of an appropriate Case Schedule and Litigation Plan.

d. Case Schedule Milestone Dates. The Case Schedule and Litigation Plan entered by the Court should include sequential milestone dates for the parties’ submission and the Court’s determination of substantive motions well in advance of any trial required pretrial statements or pretrial orders.

e. Periodic Monitoring and Conferences. The Case Schedule and Litigation Plan should provide for the Court’s continuing monitoring of the complex case’s progress through periodically scheduled status conferences, which may be telephonic for purposes of convenience, efficiencies and economics. In addition, the Court should allow the parties to request a status conference at any time during the pendency of the action.

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f. Early and Timely Judicial Rulings. The Court should endeavor to familiarize itself with substantive issues in the early stages of the complex case and render timely decisions regarding disputes and motions, particularly those involving issues that can alter the course of the litigation including the costs and burdens experienced by the litigants.

Comment

This Standard is designed to provide guidance in the application and implementation of Fed. R. Civ. P. 16 in furtherance of organizing the complex case for trial. The purpose of Rule 16 is to provide for judicial control over a case at an early stage in the proceedings. The preparation and presentation of cases is thus streamlined, making the trial process more efficient, less costly, as well as improving and facilitating the purposes for settlement. Fed. R. Civ. P. 16 Advisory Committee Notes.

This Standard stresses the importance of cooperative efforts between the Court, the attorneys and their clients to prepare the complex case for trial. As courts have noted:

The purpose of Rule 16 is to maximize the efficiency of the Court system by insisting that attorneys and clients cooperate with the Court and abandon practices which unreasonably interfere with the expeditious management of cases.

Newton v. A.C. & S., Inc., et al., 918 F.2d 1121, 1126 (3d Cir. 1990).

Judicial involvement in managing complex litigation does not lessen the duties and responsibilities of the attorneys. To the contrary, complex litigation places greater demands on counsel in their dual roles as advocates and officers of the Court. The complexity of factual and legal issues makes judges especially dependent on the assistance of counsel.

Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th § 10.21 (2004)

The effective assistance of counsel in organizing the complex case for trial will be advanced when the court’s supervision and control is dispensed in the context of mutual cooperation and between the Court and counsel. The Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th § 10.13 (2004) states:

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The attorneys – who will be more familiar than the judge with the facts and issues in the case – should play a significant part in developing the litigation plan and should have primary responsibility for its execution. Court supervision and control should recognize the burdens placed on counsel by complex litigation and should foster mutual respect and cooperation between the Court and the attorneys and among attorneys.

Implementation of the Standard’s suggested use of milestone schedule dates and periodic monitoring conferences is in furtherance of the objectives of Fed. R. Civ. P. 16 to manage the preparation of cases for trial. In Mulvaney v. Rivair Flying Service, Inc. 744 F.2d 1438, 1440 (10th Cir. 1984), the Court observed:

It is enough to note that the management of cases from the time of filing the complaint until the beginning of trial had become unacceptably long, necessitating amendment of Rule 16. While on the whole, Rule 16 is concerned with the mechanics of pretrial scheduling and planning, its spirit, intent and purpose is clearly designed to be broadly remedial, allowing courts to actively manage the preparation of cases for trial.

The Standard’s encouragement of periodic monitoring and conferences is consistent with the use of conferences following the initial conference in complex litigation to help the Court monitor the progress of the case and to address problems as they arise. Federal Judicial Center, MANUAL FOR COMPLEX LITIGATION 4th §, 11.22 (2004).

The Standard’s encouragement of early and timely judicial ruling is consistent with the spirit behind Updated Civil Trial Practice Standard 16 pertaining to submissions and rulings in bench trials and the proposition that “rulings should be made in a timely fashion.”

23. Judicial Involvement With Settlement.

a. Communication of Availability of Settlement Assistance. The court should advise the parties of available forms of settlement assistance at the first opportunity, whether at the initial case management or other hearing or in the initial scheduling or administrative order.

b. Conferral Requirement. The court should direct the parties to confer regarding whether and what forms of settlement assistance are appropriate

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for the case and when such assistance should be provided. The court should direct the parties to advise the court of the results of their conferral and identify any alternative dispute resolution mechanisms in which all parties consent to participate and the agreed timing of such participation.

c. Parties in Agreement. The court should accommodate the parties, to the extent resources are available, by providing any settlement assistance requested, including referral to available alternative dispute resolution mechanisms, such as mediation or settlement conference with a private mediator, senior, magistrate or other judge, or participation by the presiding judge in a settlement conference.

i. If the parties prefer to proceed with a settlement conference before the presiding judge, the court should require the parties to waive recusal as a condition of the presiding judge’s participation. The parties should not be offered a settlement conference with the presiding judge in the context of an expected bench trial.

ii. No party should be required to consent to participation by the presiding judge in a settlement conference. If consent is given, any party should be permitted to withdraw consent at any time, and notice of withdrawal of consent should be made by notice from all parties, without identification of which party is withdrawing consent. The withdrawal of consent does not affect the parties’ earlier waiver of recusal.

d. Parties Not in Agreement. If the parties cannot agree on the use of available settlement assistance or the timing of such assistance, the court may order the parties to participate in one or more available alternative dispute resolution mechanisms, other than participation by the presiding judge in a settlement conference.

e. No Ex Parte Contact With Third-Party Neutral. The court should not communicate ex parte with any third-party neutral, including a senior, magistrate or other judge, involved in an alternative dispute resolution mechanism about the course of negotiations or the merits of the case.

f. No Delay of Proceedings. The court ordinarily should not delay proceedings or grant continuances to permit the parties to engage in settlement negotiations.

g. Final Pretrial Proceedings. Whether or not a case has previously been the subject of settlement talks or assistance, the court should ordinarily raise

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the question of settlement assistance with the parties during final pretrial proceedings. At this point, the parties should have a grounded sense of the strengths and weaknesses of their respective cases that could contribute to a resolution by settlement.

h. Confidential Settlements. Unless contrary to law, if the parties agree to confidentiality, the court should not require the settlement terms to be on the record, even if the court or a court-appointed third-party neutral participated in the conference leading to the settlement.

Comment

The power of a court to direct parties to participate in settlement discussions is explicitly set fourth in the Federal Rules of Civil Procedure. Pursuant to Rule 16(c), a United States District Judge may, in connection with a pretrial conference, “require that a party or its representative be present or reasonably available by telephone in order to consider possible settlement of the dispute.” Fed. R. Civ. P. 16(c). Failure to make a qualified representative available may result in sanctions. Fed. R. Civ. P. 16(f); Schwartsman, Inc. v. ACF Indus., Inc., 167 F.R.D. 694 (D.N.M. 1996).

Consistent with the above Standard, at least on commentator, a sitting Justice of the Massachusetts Superior Court, has recently recognized the importance of obtaining the parties’ consent in the event that a judge who intends to preside over the trial of a case proposes to participate personally in a settlement conference, and has proposed the adoption of an ethical rule requiring such consent. Hon. John C. Cratsley, Judicial Ethics and Judicial Settlement Practices, Dispute Resolution Magazine 16, 18 (2006).

Also, consistent with the Standard, the inadvisability of having a presiding judge participate in settlement negotiations in the context of a non-jury trial has been widely recognized. See Federal Trade Commission v. Freecom Communications, Inc., 401 F.3d 1192, 1208 n.9 (10th Cir. 2005) (District judges assigned to hear a non-jury case should be especially hesitant to involve themselves in settlement negotiations.); Laura M. Warshawsky, Objectivity and Accountability: Limits on Judicial Involvement in Settlement, 1987 U. Chi. Legal F. 369; Wayne D. Brazil, Settling Civil Suits: Litigators’ Views About Appropriate Roles and Effective Techniques for Federal Judges, 84-99 (1985).

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RECOMMENDED PRACTICES FOR CIVIL JURY TRIALS IN MULTNOMAH COUNTY CIRCUIT COURT

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





 

 

 

 

 

 

 

23rd Annual Litigation Institute and Retreat 4–96 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)





               

                   

                



                                     

                

      

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23rd Annual Litigation Institute and Retreat 4–97 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

                         

                         

                                       

                

                

   

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

23rd Annual Litigation Institute and Retreat 4–98 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

                       

                                                            

                                



 

 

 





23rd Annual Litigation Institute and Retreat 4–99 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)



  

   

  

              





23rd Annual Litigation Institute and Retreat 4–100 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

   

                      

                             

   

                               

   

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

23rd Annual Litigation Institute and Retreat 4–101 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

          

 

                                

                          

                                       

                            

                    

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

23rd Annual Litigation Institute and Retreat 4–102 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

          

 

               

                                              

                                                

 

  

            

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

23rd Annual Litigation Institute and Retreat 4–103 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

 

          

                          

                     

                               

              

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

23rd Annual Litigation Institute and Retreat 4–104 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

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                         

                                                

                                 

   

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23rd Annual Litigation Institute and Retreat 4–105 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

                         

                       

                                 

 

                                                            

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

23rd Annual Litigation Institute and Retreat 4–106 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

                                

                              

          

    

  

                          

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

23rd Annual Litigation Institute and Retreat 4–107 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

  

                              

 

                                                 

                  

                                                

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

23rd Annual Litigation Institute and Retreat 4–108 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

             

                                                 

          

                  

                   

           

                        

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

23rd Annual Litigation Institute and Retreat 4–109 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

                             

                                  

                                           

                             

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23rd Annual Litigation Institute and Retreat 4–110 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

                             

           

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    

 

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23rd Annual Litigation Institute and Retreat 4–111 Chapter 4—“Skating on the Evidence” (Techniques Taught by Gravity and Time)

23rd Annual Litigation Institute and Retreat 4–112 Chapter 5 Yasui v. United States: From 1941 to Today— Making the Case for the Constitution

Peggy Nagae Peggy Nagae Consulting Portland, Oregon

Contents “Five of the Greatest: A Tribute to Outstanding Lawyers in Colorado History—Minoru Yasui” ...... 5–1 Minoru Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392, 87 L.Ed. 1793 (1943) ...... 5–7 Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) ...... 5–9 Toyosaburo Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) 5–25 United States District Judge Belloni’s 1984 Order in Yasui Vacating Conviction ...... 5–41 Hirabayashi v. U.S., 828 F.2d 591 (C.A.9 (Wash.), 1987) ...... 5–43 Memorandum in Support of Minoru Yasui’s Nomination for a 2015 Presidential Medal of Freedom 5–63 House Bill 4009 (2016) (Introduced) ...... 5–77 Chapter 5—Yasui v. United States: From 1941 to Today—Making the Case for the Constitution

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Five of the Greatest: A Tribute to Outstanding Lawyers in Colorado History Minoru Yasui1 Minoru Yasui, the third son of Masuo and Shidzuyo Yasui, was born on October 19, 1916, in Hood River, Oregon. He attended school in Hood River and graduated valedictorian from high school in 1933. He graduated from the University of Oregon in 1937 with Phi Beta Kappa honors. Min, as he liked to be called, received his law degree with honors from the University of Oregon School of Law in 1939 and became the first Japanese-American graduate of that institution. He was admitted to practice law in Oregon in that same year, but was unable to find employment with any of the established law firms in Oregon. In 1940, Min accepted a position as a Consular attaché for the Consulate General of Japan in Chicago. He wrote letters and speeches and performed other work requiring the use of English. Immediately following the bombing of Pearl Harbor by Japan on December 7, 1941, Min resigned his position with the Consulate and returned to Oregon, where he volunteered for the U.S. Army. Min had been commissioned a second lieutenant in the U.S. Army Reserves after graduating from the University of Oregon, where he had been a ROTC cadet. He received orders to report to Fort Vancouver in Washington, but upon reporting was told that his services would not be accepted because of his ancestry. Returning to Oregon after his rejection by the U.S. Army, Min opened a law practice in Portland to help those members in the community of Japanese descent during the chaotic and turbulent times immediately following the Japanese attack on Pearl Harbor. At the time, Min was the only practicing attorney of Japanese ancestry in Oregon. He was inundated with requests for legal assistance from the Japanese-American community. Test Case On February 19, 1942, President Franklin D. Roosevelt signed Executive Order 9066.1 Approximately one month later, Lt. General John L. DeWitt, Military Commander of the Western Defense Command, issued Public Proclamation No. 3.2 This order imposed travel restrictions and a curfew for German, Italian, and Japanese nationals. However, the Proclamation applied to American citizens of Japanese descent as well, but not American citizens of German or Italian ancestry. Min viewed this order as unlawful discrimination based on racial grounds and a clear violation of the U.S. Constitution. Min volunteered himself to become the test case to challenge these restrictions. On March 28, 1942, Min deliberately violated Public Proclamation No. 3. He left his law office at 8:00 P.M. that evening and walked the streets of Portland, Oregon, in clear violation of the curfew imposed by Public Proclamation No. 3. Min had instructed his secretary to call the Federal Bureau of Investigation and the Portland police to let them know that he would be out on the streets that evening. After wandering around for a couple of hours, he finally spotted a policeman and approached him. Min insisted that the patrolman arrest him for the curfew violation and showed him a copy of the Public Proclamation. The patrolman refused. Min finally went directly to the Portland police station, where he was arrested. After spending the weekend in jail, he was released on bail. Min’s trial began on June 12, 1942, before Judge James Alger Fee in the U.S. District Court for the District of Oregon.

1 Reproduced by permission of the Colorado Bar Association from Vol. 27, No. 7, The Colorado Lawyer (July 1998). All rights reserved. By Kerry S. Hada and Andrew S. Hamano. Kerry S. Hada is in private practice in Englewood, Colorado. Andrew S. Hamano is Regional Counsel for The Nature Conservancy in Boulder, Colorado.

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The trial lasted only one day. The facts of the curfew violation were quickly established, and the remainder of the trial focused on the loyalty of Minoru Yasui to the United States of America. Attempting to establish his disloyalty, the prosecution focused on his employment with the Japanese Consulate, and statements that Min had made during enemy alien hearings for his father. Considered somewhat of a maverick, Judge Fee actively took a role in questioning Min, focusing his questions on Min’s upbringing and his understanding of the Shinto religion. Since Min was a Methodist, he answered that his understanding was that Shinto was the national religion of Japan, but that he did not know its precepts. The trial ended at 5:00 P.M. and Judge Fee reserved ruling to consider the evidence. After the trial, Min was taken to the Portland Assembly Center, where other persons of Japanese descent in the Portland area had been ordered to report by the military, pending relocation. Min spent the remainder of the summer of 1942 at this Center behind barbed wire, talking about his case with other internees and doing legal work for free. While still waiting for a ruling from Judge Fee, Min was sent to the Minidoka Relocation Camp in Idaho in September 1942. In November 1942, Min was taken from Minidoka and driven back to Portland, Oregon, to hear Judge Fee’s decision in his case. On November 15, 1942, Min arrived in Portland and was taken to an isolated cell in the Multnomah County Jail. The next day Min was taken from his cell in handcuffs, chained around the waist, and walked in humiliation to the courtroom, which was one block away. Judge Fee ruled that the curfew order as applied to American citizens, even those of Japanese ancestry, was unconstitutional. However, he then went on to find that Minoru Yasui was not a United States citizen. Judge Fee concluded that Min’s actions, particularly his work for the Japanese Consulate in Chicago, effectively resulted in a renunciation by Min of his U.S. citizenship. As an “alien” of Japanese ancestry, Min had disobeyed a lawful regulation governing enemy aliens and was guilty as charged. Dumbfounded by this ruling, Min was escorted back to his cell at the county jail to await sentencing. The next day, the court imposed the maximum fine of $5,000 and sentenced Min to the maximum one year in jail. Min immediately instructed his lawyers to appeal his conviction. Min spent the next nine months in solitary confinement in a six-by-eight-foot windowless cell in the Multnomah County Jail. He was not allowed to leave his cell to bathe or even exercise for the first month and a half of his confinement. Min was not allowed scissors to cut his hair or fingernails nor razors to shave. Sometime after Christmas, he was taken out of his cell for the first time since his sentencing to bathe, shave, and have his hair cut. During the remainder of his confinement at the Multnomah County Jail, Min was only allowed to bathe and shave once a month. In spite of these barbarous conditions, Min never wavered in his conviction that he would be vindicated. The Ninth Circuit Court of Appeals certified Min’s appeal directly to the U.S. Supreme Court. The Supreme Court reversed the findings of Judge Fee.3 The Court found that the lower court erred in its finding that Minoru Yasui had lost his United States citizenship.4 It also found that the lower court erred in ruling the curfew order unconstitutional as applied to United States citizens.5 Consistent with its analysis, the Court then upheld the lower court’s conviction of Min and the fine of $5, 000, but freed him from further incarceration.6 New Beginnings Min was released from jail and taken to Minidoka Relocation Camp. During the summer of 1944, Min was released from Minidoka for employment in Chicago. He worked for a time as a laborer in an ice plant, as well as other odd jobs. In September 1944, Min moved to Denver, Colorado. He sat for the Colorado bar examination in 1945. Although .he received the highest scores among the group of candidates

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that sat for the bar examination that year, Min was denied admission to the Colorado bar because of his criminal conviction .Represented by Samuel L. Menin of the American Civil Liberties Union, Min appealed to the Colorado Supreme Court. Min was admitted to practice law in Colorado in January 1946. In November 1946, he married True Shibata. True was originally from California, but had been interned at the Amache Relocation Camp in Granada, Colorado. She relocated to Denver after her release from Amache. They had three children—Iris, Laurel and Holly. Law and Community Involvement Min began his law practice in Colorado with his brother-in-law, Toshio Ando, in an office located at 1917 Lawrence Street in Denver. Min soon started his own practice and moved to an office at 1225 20th Street. Long hours and low pay characterized his practice. Many of his clients could only afford to pay Min in-kind. His widow, True, recounts one year in the 1950s when Min was given a live turkey by a client in payment for legal services. True kept the turkey in the family garage and fed it quite well for several months in hopes of having a plump turkey for Thanksgiving dinner. Even though the turkey fattened nicely by November, True didn’t have the heart to kill and eat it. Instead, she gave the turkey to another family. Min continued his fight against racial bigotry and hatred in Colorado. In 1945, a bill was introduced in the Colorado General Assembly to prohibit aliens from owning land. Based on the rhetoric used in support of this piece of legislation, it was clear that the intent of this bill was to keep Japanese aliens from resettling in Colorado and purchasing land. At a time when anti- Japanese sentiment was strong, Min spoke vigorously against this piece ·of legislation at personal risk to himself. Min was a founding member and board member of the Urban League of Denver, a group dedicated to addressing issues of concern to the African-American community. He assisted in founding the Latin American Research and Service Agency (‘‘LARASA”). In addition, Min helped organize Denver Native Americans United. True Yasui recalls that Min was involved in as many as seventy-five organizations. Min’s active involvement in the community to improve human relations led to his appointment to Denver’s Community Relations Commission in 1959. He served on this Commission for eight years and held the positions of vice-chairman and chairman during this period. In 1967 he was appointed by the Mayor of Denver to be the Executive Director of the Community Relations Commission. He held that position until he retired in 1983.During his tenure as Executive Director, Min instituted a monthly community volunteer award to recognize individuals in the community who volunteered their time to worthy causes. In 1976, this award was renamed the Minoru Yasui Community Volunteer Award (“MYCVA’’), in recognition of Min’s tireless spirit of volunteerism. Later, the Denver City Council passed an ordinance making MYCVA an official organization. Min also was active in the Japanese American Citizens League (“JACL’’) for fifty-three years. He was a member of the Mile Hi Chapter of the JACL and helped guide it for many years. He was elected District Governor of the Mountain-Plains District of JACL during his involvement with the organization. One of the causes he kept close to his heart was the redress of the terrible injustice that had been inflicted on the Japanese-American community during World War II. In 1948, Min lobbied for passage of the Evacuation Claims Act7 by the U.S. Congress. After passage of the Act, he worked countless hours helping file claims for Japanese Americans who had suffered economic losses because of their forced evacuation. However, only about 4 percent of the economic losses suffered by individuals eligible to apply was compensated.8 Min vehemently believed that the U.S. government needed to acknowledge the wrong that had been committed against the Japanese-American community and pay reparations for the economic losses suffered by those forcibly relocated. For several years, he served as Chairman of the National JACL Redress Committee. However, Min died on November 12, 1986,

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before seeing the culmination of his hard work by the enactment of the Civil Liberties Act of 1988,9 providing redress, reparation, and an official apology from the government to the thousands of Japanese Americans incarcerated or relocated under duress during World War II. Min also lobbied for passage of the McCarran-Walter Act of 1952,10 which removed the prohibition on Japanese aliens applying for U.S. citizenship. Prior to passage of the Walter- McCarran Act, Japanese aliens in the United States were deemed aliens ineligible for citizenship. After passage of this Act, Min helped many elderly Japanese aliens in Colorado through the naturalization process to become U.S. citizens. In addition to his untiring commitment to the community, Min also remained adamant in his desire to see his conviction for the curlew violation overturned. The release of previously classified documents11 under the Freedom of Information Act provided a basis for Min to file a writ of error coram nobis in the U.S. District Court for the District of Oregon in 1983.12 Min’s petition requested the court to vacate his conviction, dismiss the underlying indictment, make findings of governmental misconduct, and declare unconstitutional Public Proclamation No.3, under which he had been convicted.13 The government did not oppose the vacation of Min’s conviction, but it opposed all the other claims for relief sought by Min. On January 26, 1984, Judge Robert C. Belloni issued his ruling on the writ. He vacated Min’s conviction, but agreed with the government and dismissed the petition as to the remaining issues.14 Min believed that the mere reversal of his conviction was not sufficient, and he appealed Judge Belloni’s decision concerning the dismissal of the remainder of his writ. While the appeal was pending before the Ninth Circuit Court of Appeals, Min passed away. The government immediately moved to dismiss the appeal on the grounds that the plaintiff was deceased and, therefore, the case was moot. The Ninth Circuit granted the government’s motion to dismiss,15 and the case was appealed to the U.S. Supreme Court. On October 5, 1987, the Court upheld the lower court’s ruling and ended Min’s dream of complete vindication.16 Faith in the Legal System Min’s passionate faith in the U.S. Constitution and the American legal system is best summarized in the statement he wrote the night before his sentencing before Judge Fee and delivered prior to sentence being imposed. “Your Honor—if the Court please, I should like to say a few words. There is no intent to plead for leniency for myself or to request a mitigation of the punishment that is about to be inflicted upon me. ‘‘Despite the circumstances, I am compelled to pay tribute and give my unreserved respect to this honorable court for its clear-cut and courageous reaffirmation of the inviolability of the fundamental civil rights and liberties of an American citizen. “As an American citizen, it was for a clarification and the preservation of those rights that I undertook this case, confident that the American judiciary would zealously defend those rights, war or no war, in order to preserve the fundamental democratic doctrines of our nation and to perpetuate the eternal truths of America. “My confidence has been justified and I feel the greatest satisfaction and patriotic uplift in the decision of this honorable court, for it is full of significance for every American, be he humble or mighty. “I say that I am glad, regardless of the personal consequences to me, because I believe in the future and in the ultimate destiny of America. Ever since I was a child, I have been inculcated in the basic concepts and the traditions of those great patriots who founded our nation.

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“I have lived, believed, worked and aspired as an American. With due respect to this honorable court, in all good conscience, I can say that I have never, and will never, voluntarily relinquish my American citizenship. ‘The decision of this honorable court to the contrary notwithstanding, I am confident that I can establish in law and in fact that I am an American citizen, who is not only proud of that fact, but who is willing to defend that right. ‘‘When I attained majority, I swore allegiance to the United States of America, renouncing any and all other allegiances that I may have unknowingly owed. That solemn obligation to my native land has motivated me during the past 12 months upon three separate and distinct occasions to volunteer for active service in the United States army, wheresoever it may be fighting to preserve the American way of life. “For I would a thousand times prefer to die on a battlefront as an American soldier in defense of freedom and democracy, for the principles which I believe, rather than to live in relative comfort as an interned alien Jap. “The treacherous attack on Pearl Harbor, the bombing of Manila, the aggressor policies of the war lords of Japan are just as reprehensible to me as to any American citizen. “If America were invaded today, I and 70,000 other loyal American citizens of Japanese ancestry would ·be willing, eager, to lay down our lives in the streets, down in the gutters, to defend our homes, our country, and our liberties! ‘‘Be that as it may; I reiterate, regardless of the personal consequences, even though it entail the sacrifice of my American citizenship which I regard as sacred and more dear than life itself, I pay homage and salute this honorable court and my country, the United States of America, for the gallant stand that has been taken for the preservation of the fundamental principles of democracy and freedom!”17 NOTES 1. Executive Order 9066, 7 Fed.Reg. 1407 (1942), stated in pertinent part: [B]y virtue of the authority vested in me as President of the United States, and Commander in Chief of the Army and Navy, I hereby authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas . . . from which any or all persons may be excluded, and with respect to which the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion. 2. Public Proclamation No. 3 was issued on March 24, 1942, pursuant to the Act of March 21, 1942, 56 Stat. 173 (1942). Public Law No. 503, 56 Stat. 173, provided in pertinent part: [W]hoever shall enter, remain in, leave or commit any act in any military area . . . contrary to the restrictions applicable to any such area . . . shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense. 3. Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392 (1943). 4. Id. 5. Id. 6. Id. 7. 50App. U.S.C.A. §§ 1983 et seq.

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8. Yasui, The Yasui Family of Hood River Oregon (Williamsport, Penn.: 1987) at 65. 9. 50 App. U.S.C.A. §§ 1989(b) et seq. 10. 8 U.S.C. §§1101 et seq. 11. The released documents were FBI and Naval Intelligence Reports from 1942 that categorically refuted General DeWitt’s justification for the evacuation orders. These documents showed that there was no military justification for the military orders issued by the Western Defense Command in relation to the curfew orders and evacuation. See Yasui, supra, note 8 at 70. 12. Yasui v. United States, Civil No. 83-151-BE (D.Or. 1983). 13. Id. at 2. 14. Yasui v. United States, Civil No. 83-151-BE, slip opinion (D.Or. Jan. 26, 1984). 15. 772 F.2nd 1496 (9th Cir. 1984). 16. 484 U.S. 971, 108 S.Ct. 471 (1987). 17. Dodds, Varieties of Hope—An Anthology of Oregon Prose (Corvallis, Or.: Oregon State University Press, 1993), at 117–18.

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320 U.S. 115 63 S.Ct. 1392 87 L.Ed. 1793 MINORU YASUI v. UNITED STATES. No. 871. Argued May 10, 11, 1943. Decided June 21, 1943. Messrs. E. F. Bernard, of Portland, Or., and A. L. Wirin, of Los Angeles, Cal., for Yasui in No. 871. Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for the United States. Mr. Chief Justice STONE delivered the opinion of the Court. This is a companion case to Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. —-, decided this day. The case comes here on certificate of the Court of Appeals for the Ninth Circuit, certifying to us questions of law upon which it desires instructions for the decision of the case. § 239 of the Judicial Code as amended, 28 U.S.C. § 346, 28 U.S.C.A. § 346. Acting under that section we ordered the entire record to be certified to this Court so that we might proceed to a decision, as if the case had been brought here by appeal. 63 S.Ct. 860, 87 L.Ed. —-. Appellant, an American-born person of Japanese ancestry, was convicted in the district court of an offense defined by the Act of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a. The indictment charged him with violation, on March 28, 1942, of a curfew order made applicable to Portland, Oregon, by Public Proclamation No. 3, issued by Lt. General J. L. DeWitt on March 24, 1942. 7 Federal Register 2543. The validity of the curfew was considered in the Hirabayashi case, and this case presents the same issues as the conviction on Count 2 of the indictment in that case. From the evidence it appeared that appellant was born in Oregon in 1916 of alien parents; that when he was eight years old he spent a summer in Japan; that he attended the public schools in Oregon, and also, for about three years, a Japanese language school; that he later attended the University of Oregon, from which he received A.B. and LL.B degrees; that he was a member of the bar of Oregon, and a second lieut nant in the Army of the United States, Infantry Reserve; that he had been employed by the Japanese Consulate in Chicago, but had resigned on December 8, 1941, and immediately offered his services to the military authorities; that he had discussed with an agent of the Federal Bureau of Investigation the advisability of testing the constitutionality of the curfew; and that when he violated the curfew order he requested that he be arrested so that he could test its constitutionality. The district court ruled that the Act of March 21, 1942, was unconstitutional as applied to American citizens, but held that appellant, by reason of his course of conduct, must be deemed to have renounced his American citizenship. D.C., 48 F.Supp. 40. The Government does not undertake to support the conviction on that ground, since no such issue was tendered by the Government, although appellant testified at the trial that he had not renounced his citizenship. Since we hold, as in the Hirabayashi case, that the curfew order was valid as applied to citizens, it follows that appellant's citizenship was not relevant to the issue tendered by the Government and the conviction must be sustained for the reasons stated in the Hirabayashi case. But as the sentence of one year's imprisonment—the maximum permitted by the statute—was imposed after the finding that appellant was not a citizen, and as the Government states that it has not and does not now controvert his citizenship, the case is an appropriate one

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for resentence in the light of these circumstances. See Husty v. United States, 282 U.S. 694, 703, 51 S.Ct. 240, 242, 75 L.Ed. 629, 74 A.L.R. 1407. The conviction will be sustained but the judgment will be vacated and the cause remanded to the district court for resentence of appellant, and to afford that court opportunity to strike its findings as to appellant's loss of United States citizenship. So ordered. Conviction sustained; cause remanded for resentence.

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320 U.S. 81 63 S.Ct. 1375 87 L.Ed. 1774 KIYOSHI HIRABAYASHI v. UNITED STATES. No. 870. Argued May 10, 11, 1943. Decided June 21, 1943. Messrs. Frank L. Walters, of Seattle, Wash., and Harold Evans, of Philadelphia, Pa., for Hirabayashi. Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for the United States. Mr. Chief Justice STONE delivered the opinion of the Court. Appellant, an American citizen of Japanese ancestry, was convicted in the district court of violating the Act of Congress of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a, which makes it a misdemeanor knowingly to disregard restrictions made applicable by a military commander to persons in a military area prescribed by him as such, all as authorized by an Executive Order of the President. The questions for our decision are whether the particular restriction violated, namely that all persons of Japanese ancestry residing in such an area be within their place of residence daily between the hours of 8:00 p.m. and 6:00 a.m., was adopted by the military commander in the exercise of an unconstitutional delegation by Congress of its legislative power, and whether the restriction unconstitutionally discriminated between citizens of Japanese ancestry and those of other ancestries in violation of the Fifth Amendment. The indictment is in two counts. The second charges that appellant, being a person of Japanese ancestry, had on a specified date, contrary to a restriction promulgated by the military commander of the Western Defense Command, Fourth Army, failed to remain in his place of residence in the designated military area between the hours of 8:00 o'clock p.m. and 6:00 a.m. The first count charges that appellant, on May 11 and 12, 1942, had, contrary to a Civilian Exclusion Order issued by the military commander, failed to report to the Civil Control Station within the designated area, it appearing that appellant's required presence there was a preliminary step to the exclusion from that area of persons of Japanese ancestry. By demurrer and plea in abatement, which the court overruled (C.C., 46 F.Supp. 657), appellant asserted that the indictment should be dismissed because he was an American citizen who had never been a subject of and had never borne allegiance to the Empire of Japan, and also because the Act of March 21, 1942, was an unconstitutional delegation of Congressional power. On the trial to a jury it appeared that appellant was born in Seattle in 1918, of Japanese parents who had come from Japan to the United States, and who had never afterward returned to Japan; that he was educated in the Washington public schools and at the time of his arrest was a senior in the University of Washington; that he had never been in Japan or had any association with Japanese residing there. The evidence showed that appellant had failed to report to the Civil Control Station on May 11 or May 12, 1942, as directed, to register for evacuation from the military area. He admitted failure to do so, and stated it had at all times been his belief that he would be waiving his rights as an American citizen by so doing. The evidence also showed that for like reason he was away from his place of residence after 8:00 p.m. on May 9, 1942. The jury returned a

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verdict of guilty on both counts and appellant was sentenced to imprisonment for a term of three months on each, the sentences to run concurrently. On appeal the Court of Appeals for the Ninth Circuit certified to us questions of law upon which it desired instructions for the decision of the case. See § 239 of the Judicial Code as amended, 28 U.S.C. § 346, 28 U.S.C.A. § 346. Acting under the authority conferred upon us by that section we ordered that the entire record be certified to this Court so that we might proceed to a decision of the matter in controversy in the same manner as if it had been brought here by appeal. 63 S.Ct. 860, 87 L.Ed —-. Since the sentences of three months each imposed by the district court on the two counts were ordered to run concurrently, it will be unnecessary to consider questions raised with respect to the first count if we find that the conviction on the second count, for violation of the curfew order, must be sustained. Brooks v. United States, 267 U.S. 432, 441, 45 S.Ct. 345, 347, 69 L.Ed. 699, 37 A.L.R. 1407; Gorin v. United States, 312 U.S. 19, 33, 61 S.Ct. 429, 436, 85 L.Ed. 488. The curfew order which appellant violated, and to which the sanction prescribed by the Act of Congress has been deemed to attach, purported to be issued pursuant to an Executive Order of the President. In passing upon the authority of the military commander to make and execute the order, it becomes necessary to consider in some detail the official action which preceded or accompanied the order and from which it derives its purported authority. On December 8, 1941, one day after the bombing of Pearl Harbor by a Japanese air force, Congress declared war against Japan. 55 Stat. 795, 50 U.S.C.A.Appendix, preceding section 1 note. On February 19, 1942, the President promulgated Executive Order No. 9066. 7 Federal Register 1407. The Order recited that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities as defined in Section 4, Act of April 20, 1918, 40 Stat. 533, as amended by the Act of November 30, 1940, 54 Stat. 1220, and the Act of August 21, 1941, 55 Stat. 655 (50 U.S.C.A. § 104)'. By virtue of the authority vested in him as President and as Commander in Chief of the Army and Navy, the President purported to 'authorize and direct the Secretary of War, and the Military Commanders whom he may from time to time designate, whenever he or any designated Commander deems such action necessary or desirable, to prescribe military areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discretion.' On February 20, 1942, the Secretary of War designated Lt. General J. L. DeWitt as Military Commander of the Western Defense Command, comprising the Pacific Coast states and some others, to carry out there the duties prescribed by Executive Order No. 9066. On March 2, 1942, General DeWitt promulgated Public Proclamation No. 1. 7 Federal Register 2320. The proclamation recited that the entire Pacific Coast 'by its geographical location is particularly subject to attack, to attempted invasion by the armed forces of nations with which the United States is now at war, and, in connection therewith, is subject to espionage and acts of sabotage, thereby requiring the adoption of military measures necessary to establish safeguards against such enemy operations'. It stated that 'the present situation requires as matter of military necessity the establishment in the territory embraced by the Western Defense Command of Military Areas and Zones thereof'; it specified and designated as military areas certain areas within the Western Defense Command; and it declared that 'such persons or classes of persons as the situation may require' would, by subsequent proclamation, be excluded from certain of these areas, but might be permitted to enter or remain in certain others, under regulations and restrictions to be later prescribed. Among the military areas so designated by Public Proclamation No. 1 was Military Area No. 1, which embraced, besides the southern part of Arizona, all the coastal region of the three Pacific Coast states, including the

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City of Seattle, Washington, where appellant resided. Military Area No. 2. designated by the same proclamation, included those parts of the coastal states and of Arizona not placed within Military Area No. 1. Public Proclamation No. 2 of March 16, 1942, issued by General DeWitt, made like recitals and designated further military areas and zones. It contained like provisions concerning the exclusion, by subsequent proclamation, of certain persons or classes of persons from these areas, and the future promulgation of regulations and restrictions applicable to persons remaining within them. 7 Federal Register 2405. An Executive Order of the President, No. 9102, of March 18, 1942, established the War Relocation Authority, in the Office for Emergency Management of the Executive Office of the President; it authorized the Director of War Relocation Authority to formulate and effectuate a program for the removal, relocation, maintenance and supervision of persons designated under Executive Order No. 9066, already referred to; and it conferred on the Director authority to prescribe regulations necessary or desirable to promote the effective execution of the program. 7 Federal Register 2165. Congress, by the Act of March 21, 1942, 18 U.S.C.A. § 97a, provided: 'That whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable' to fine or imprisonment, or both. Three days later, on March 24, 1942, General DeWitt issued Public Proclamation No. 3. 7 Federal Register 2543. After referring to the previous designation of military areas by Public Proclamations No. 1 and 2, it recited that '* * * the present situation within these Military Areas and Zones requires as a matter or military necessity the establishment of certain regulations pertaining to all enemy aliens and all persons of Japanese ancestry within said Military Areas and Zones * * *.' It accordingly declared and established that from and after March 27, 1942, 'all alien Japanese, all alien Germans, all alien Italians, and all persons of Japanese ancestry residing or being within the geographical limits of Military Area No. 1 * * * shall be within their place of residence between the hours of 8:00 P.M. and 6:00 A.M., which period is hereinafter referred to as the hours of curfew'. It also imposed certain other restrictions on persons of Japanese ancestry, and provided that any person violating the regulations would be subject to the criminal penalties provided by the Act of Congress of March 21, 1942. Beginning on March 24, 1942, the military commander issued a series of Civilian Exclusion Orders pursuant to the provisions of Public Proclamation No. 1. Each such order related to a specified area within the territory of his command. The order applicable to appellant was Civilian Exclusion Order No. 57 of May 10, 1942. 7 Federal Register 3725. It directed that from and after 12:00 noon, May 16, 1942, all persons of Japanese ancestry, both alien and non- alien, be excluded from a specified portion of Military Area No. 1 in Seattle, including appellant's place of residence, and it required a member of each family, and each individual living alone, affected by the order to report on May 11 or May 12 to a designated Civil Control Station in Seattle. Meanwhile the military commander had issued Public Proclamation No. 4 of March 27, 1942, which recited the necessity of providing for the orderly evacuation and resettlement of Japanese within the area, and prohibited all alien Japanese and all persons of Japanese ancestry from leaving the military area until future orders should permit. 7 Federal Register 2601. Appellant does not deny that he knowingly failed to obey the curfew order as charged in the second count of the indictment, or that the order was authorized by the terms of Executive Order No. 9066, or that the challenged Act of Congress purports to punish with criminal

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penalties disobedience of such an order. His contentions are only that Congress unconstitutionally delegated its legislative power to the military commander by authorizing him to impose the challenged regulation, and that, even if the regulation were in other respects lawfully authorized, the Fifth Amendment prohibits the discrimination made between citizens of Japanese descent and those of other ancestry. It will be evident from the legislative history that the Act of March 21, 1942, contemplated and authorized the curfew order which we have before us. The bill which became the Act of March 21, 1942, was introduced in the Senate on March 9th and in the House on March 10th at the request of the Secretary of War who, in letters to the Chairman of the Senate Committee on Military Affairs and to the Speaker of the House, stated explicitly that its purpose was to provide means for the enforcement of orders issued under Executive Order No. 9066. This appears in the committee reports on the bill, which set out in full the Executive Order and the Secretary's letter. 88 Cong.Rec. 2722, 2725; H.R. Rep. No. 1906, 77th Cong. 2d Sess.; S. Rep. No. 1171, 77th Cong., 2d Sess. And each of the committee reports expressly mentions curfew orders as one of the types of restrictions which it was deemed desirable to enforce by criminal sanctions. When the bill was under consideration, General DeWitt had published his Proclamation No. 1 of March 2, 1942, establishing Military Areas Nos. 1 and 2, and that Proclamation was before Congress. S.Rep. No. 1171, 77th Cong., 2d Sess., p. 2; see also 88 Cong.Rec. 2724. A letter of the Secretary to the Chairman of the House Military Affairs Committee, of March 14, 1942, informed Congress that 'General DeWitt is strongly of the opinion that the bill, when enacted, should be broad enough to enable the Secretary of War or the appropriate military commander to enforce curfews and other restrictions within military areas and zones'; and that General DeWitt had 'indicated that he was prepared to enforce certain restrictions at once for the purpose of protecting certain vital national defense interests but did not desire to proceed until enforcement machinery had been set up'. H.R. Rep. No. 1906, 77th Cong., 2d Sess., p. 3. See also letter of the Acting Secretary of War to the Chairman of the Senate Military Affairs Committee, March 13, 1942, 88 Cong.Rec. 2725. The Chairman of the Senate Military Affairs Committee explained on the floor of the Senate that the purpose of the proposed legislation was to provide means of enforcement of curfew orders and other military orders made pursuant to Executive Order No. 9066. He read General DeWitt's Public Proclamation No. 1, and statements from newspaper reports that 'evacuation of the first Japanese aliens and American-born Japanese' was about to begin. He also stated to the Senate that 'reasons for suspected widespread fifth-column activity among Japanese' were to be found in the system of dual citizenship which Japan deemed applicable to American-born Japanese, and in the propaganda disseminated by Japanese consuls, Buddhist priests and other leaders, among American-born children of Japanese. Such was stated to be the explanation of the contemplated evacuation from the Pacific Coast area of persons of Japanese ancestry, citizens as well as aliens. 88 Cong.Rec. 2722-2726; see also pp. 2729, 2730. Congress also had before it the Preliminary Report of a House Committee investigating national defense migration, of March 19, 1942, which approved the provisions of Executive Order No. 9066, and which recommended the evacuation, from military areas established under the Order, of all persons of Japanese ancestry, including citizens. H.R. Rep. No. 1911, 77th Cong., 2d Sess. The proposed legislation provided criminal sanctions for violation of orders, in terms broad enough to include the curfew order now before us, and the legislative history demonstrates that Congress was advised that curfew orders were among those intended, and was advised also that regulation of citizen and alien Japanese alike was contemplated. The conclusion is inescapable that Congress, by the Act of March 21, 1942, ratified and confirmed Executive Order No. 9066. Prize Cases (The Amy Warwick), 2 Black 635, 671, 17 L.Ed. 459; Hamilton v. Dillin, 21 Wall, 73, 96, 97, 22 L.Ed. 528; United States v. Heinszen & Co., 206 U.S. 370, 382-384, 27 S.Ct. 742, 744, 745, 51 L.Ed. 1098, 11 Ann.Cas. 688; Tiaco v. Forbes, 228 U.S. 549, 556, 33 S.Ct. 585, 586, 57 L.Ed. 960; Isbrandtsen-Moller Co. v. United

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States, 300 U.S. 139, 146-148, 57 S.Ct. 407, 411, 81 L.Ed. 562; Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 300-303, 57 S.Ct. 478, 479, 480, 81 L.Ed. 659; Mason Co. v. Tax Comm'n, 302 U.S. 186, 208, 58 S.Ct. 233, 244, 82 L.Ed. 187. And so far as it lawfully could, Congress authorized and implemented such curfew orders as the commanding officer should promulgate pursuant to the Executive Order of the President. The question then is not one of Congressional power to delegate to the President the promulgation of the Executive Order, but whether, acting in cooperation, Congress and the Executive have constitutional authority to impose the curfew restriction here complained of. We must consider also whether, acting together, Congress and the Executive could leave it to the designated military commander to appraise the relevant conditions and on the basis of that appraisal to say whether, under the circumstances, the time and place were appropriate for the promulgation of the curfew order and whether the order itself was an appropriate means of carrying out the Executive Order for the 'protection against espionage and against sabotage' to national defense materials, premises and utilities. For reasons presently to be stated, we conclude that it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power. Executive Order No. 9066, promulgated in time of war for the declared purpose of prosecuting the war by protecting national defense resources from sabotage and espionage, and the Act of March 21, 1942, ratifying and confirming the Executive Order, were each an exercise of the power to wage war conferred on the Congress and on the President, as Commander in Chief of the armed forces, by Articles I and II of the Constitution. See Ex parte Quirin, 317 U.S. 1, 25, 26, 63 S.Ct. 2, 9, 10, 87 L.Ed. —-. We have no occasion to consider whether the President, acting alone, could lawfully have made the curfew order in question, or have authorized others to make it. For the President's action has the support of the Act of Congress, and we are immediately concerned with the question whether it is within the constitutional power of the national government, through the joint action of Congress and the Executive, to impose this restriction as an emergency war measure. The exercise of that power here involves no question of martial law or trial by military tribunal. Cf. Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Ex parte Quirin, supra. Appellant has been tried and convicted in the civil courts and has been subjected to penalties prescribed by Congress for the acts committed. The war power of the national government is 'the power to wage war successfully'. See Charles Evans Hughes, War Powers Under the Constitution, 42 A.B.A.Rep. 232, 238. It extends to every matter and activity so related to war as substantially to affect its conduct and progress. The power is not restricted to the winning of victories in the field and the repulse of enemy forces. It embraces every phase of the national defense, including the protection of war materials and the members of the armed forces from injury and from the dangers which attend the rise, prosecution and progress of war. Prize Cases, supra; Miller v. United States, 11 Wall. 268, 303, 314, 20 L.Ed. 135; Stewart v. Kahn, 11 Wall. 493, 506, 507, 20 L.Ed. 176; Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856; McKinley v. United States, 249 U.S. 397, 39 S.Ct. 324, 63 L.Ed. 668; United States v. Macintosh, 283 U.S. 605, 622, 623, 51 S.Ct. 570, 574, 75 L.Ed. 1302. Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare, it has necessarily given them wide scope for the exercise of judgment and discretion in determining the nature and extent of the threatened injury or danger and in the selection of the means for resisting it. Ex parte Quirin, supra, 317 U.S. 28, 29, 63 S.Ct. 10, 11, 87 L.Ed. —-; cf. Prize Cases, supra, 2 Black 670, 17 L.Ed. 459; Martin v. Mott, 12 Wheat. 19, 29, 6 L.Ed. 537. Where, as they did here, the conditions call for the exercise of judgment and discretion and for the choice of means by those branches of the Government on which the Constitution has placed the responsibility of

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warmaking, it is not for any court to sit in review of the wisdom of their action or substitute it judgment for theirs. The actions taken must be appraised in the light of the conditions with which the President and Congress were confronted in the early months of 1942, many of which since disclosed, were then peculiarly within the knowledge of the military authorities. On December 7, 1941, the Japanese air forces had attacked the United States Naval Base at Pearl Harbor without warning, at the very hour when Japanese diplomatic representatives were conducting negotiations with our State Department ostensibly for the peaceful settlement of differences between the two countries. Simultaneously or nearly so, the Japanese attacked Malaysia, Hong Kong, the Philippines, and Wake and Midway Islands. On the following day their army invaded Thailand. Shortly afterwards they sank two British battleships. On December 13th, Guam was taken. On December 24th and 25th they captured Wake Island and occupied Hong Kong. On January 2, 1942, Manila fell, and on February 10th Singapore, Britain's great naval base in the East, was taken. On February 27th the battle for the Java Sea resulted in a disastrous naval defeat to the United Nations. By the 9th of March Japanese forces had established control over the Netherlands East Indies; Rangoon and Burma were occupied; Bataan and Corregidor were under attack. Although the results of the attack on Pearl Harbor were not fully disclosed until much later, it was known that the damage was extensive, and that the Japanese by their successes had gained a naval superiority over our forces in the Pacific which might enable them to seize Pearl Harbor, our largest naval base and the last stronghold of defense lying between Japan and the west coast. That reasonably prudent men charged with the responsibility of our national defense had ample ground for concluding that they must face the danger of invasion, take measures against it, and in making the choice of measures consider our internal situation, cannot be doubted. The challenged orders were defense measures for the avowed purpose of safeguarding the military area in question, at a time of threatened air raids and invasion by the Japanese forces, from the danger of sabotage and espionage. As the curfew was made applicable to citizens residing in the area only if they were of Japanese ancestry, our inquiry must be whether in the light of all the facts and circumstances there was any substantial basis for the conclusion, in which Congress and the military commander united, that the curfew as applied was a protective measure necessary to meet the threat of sabotage and espionage which would substantially affect the war effort and which might reasonably be expected to aid a threatened enemy invasion. The alternative which appellant insists must be accepted is for the military authorities to impose the curfew on all citizens within the military area, or on none. In a case of threatened danger requiring prompt action, it is a choice between inflicting obviously needless hardship on the many, or sitting passive and unresisting in the presence of the threat. We think that constitutional government, in time of war, is not so powerless and does not compel so hard a choice if those charged with the responsibility of our national defense have reasonable ground for believing that the threat is real. When the orders were promulgated there was a vast concentration, within Military Areas No. 1 and 2, of installations and facilities for the production of military equipment, especially ships and airplanes. Important Army and Navy bases were located in California and Washington. Approximately one-fourth of the total value of the major aircraft contracts then let by Government procurement officers were to be performed in the State of California. California ranked second, and Washington fifth, of all the states of the Union with respect to the value of shipbuilding contracts to be performed.1 In the critical days of March, 1942, the danger to our war production by sabotage and espionage in this area seems obvious. The German invasion of the Western European countries had given ample warning to the world of the menace of the 'fifth column.' Espionage by persons in sympathy with the Japanese Government had been found to have been

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particularly effective in the surprise attack on Pearl Harbor.2 At a time of threatened Japanese attack upon this country, the nature of our inhabitants' attachments to the Japanese enemy was consequently a matter of grave concern. Of the 126,000 persons of Japanese descent in the United States, citizens and non-citizens, approximately 112,000 resided in California, Oregon and Washington at the time of the adoption of the military regulations. Of these approximately two-thirds are citizens because born in the United States. Not only did the great majority of such persons reside within the Pacific Coast states but they were concentrated in or near three of the large cities, Seattle, Portland and Los Angeles, all in Military Area No. 1.3 There is support for the view that social, economic and political conditions which have prevailed since the close of the last century, when the Japanese began to come to this country in substantial numbers, have intensified their solidarity and have in large measure prevented their assimilation as an integral part of the white population.4 In addition, large numbers of children of Japanese parentage are sent to Japanese language schools outside the regular hours of public schools in the locality. Some of these schools are generally believed to be sources of Japanese nationalistic propaganda, cultivating allegiance to Japan.5 Considerable numbers, estimated to be approximately 10,000, of American-born children of Japanese parentage have been sent to Japan for all or a part of their education.6 Congress and the Executive, including the military commander, could have attributed special significance, in its bearing on the loyalties of persons of Japanese descent, to the maintenance by Japan of its system of dual citizenship. Children born in the United States of Japanese alien parents, and especially those children born before December 1, 1924, are under many circumstances deemed, by Japanese law, to be citizens of Japan.7 No official census of those whom Japan regards as having thus retained Japanese citizenship is available, but there is ground for the belief that the number is large.8 The large number of resident alien Japanese, approximately one-third of all Japanese inhabitants of the country, are of mature years and occupy positions of influence in Japanese communities. The association of influential Japanese residents with Japanese Consulates has been deemed a ready means for the dissemination of propaganda and for the maintenance of the influence of the Japanese Government with the Japanese population in this country.9 As a result of all these conditions affecting the life of the Japanese, both aliens and citizens, in the Pacific Coast area, there has been relatively little social intercourse between them and the white population. The restrictions, both practical and legal, affecting the privileges and opportunities afforded to persons of Japanese extraction residing in the United States, have been sources of irritation and may well have tended to increase their isolation, and in many instances their attachments to Japan and its institutions. Viewing these data in all their aspects, Congress and the Executive could reasonably have concluded that these conditions have encouraged the continued attachment of members of this group to Japan and Japanese institutions. These are only some of the many considerations which those charged with the responsibility for the national defense could take into account in determining the nature and extent of the danger of espionage and sabotage, in the event of invasion or air raid attack. The extent of that danger could be definitely known only after the event and after it was too late to meet it. Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it. Appellant does not deny that, given the danger, a curfew was an appropriate measure against sabotage. It is an obvious protection against the perpetration of sabotage most readily

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committed during the hours of darkness. If it was an appropriate exercise of the war power its validity is not impaired because it has restricted the citizen's liberty. Like every military control of the population of a dangerous zone in wartime, it necessarily involves some infringement of individual liberty, just as does the police establishment of fire lines during a fire, or the confinement of people to their houses during an air raid alarm neither of which could be thought to be an infringement of constitutional right. Like them, the validity of the restraints of the curfew order depends on all the conditions which obtain at the time the curfew is imposed and which support the order imposing it. But appellant insists that the exercise of the power is inappropriate and unconstitutional because it discriminates against citizens of Japanese ancestry, in violation of the Fifth Amendment. The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. Detroit Bank v. United States, 317 U.S. 329, 337, 338, 63 S.Ct. 297, 301, 87 L.Ed. —-, and cases cited. Congress may hit at a particular danger where it is seen, without providing for others which are not so evident or so urgent. Keokee Consol. Coke Co. v. Taylor, 234 U.S. 224, 227, 34 S.Ct. 856, 58 L.Ed. 1288. Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection. Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220; Yu Cong Eng v. Trinidad, 271 U.S. 500, 46 S.Ct. 619, 70 L.Ed. 1059; Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559. We may assume that these considerations would be controlling here were it not for the fact that the danger of espionage and sabotage, in time of war and of threatened invasion, calls upon the military authorities to scrutinize every relevant fact bearing on the loyalty of populations in the danger areas. Because racial discriminations are in most circumstances irrelevant and therefore prohibited, it by no means follows that, in dealing with the perils of war, Congress and the Executive are wholly precluded from taking into account those facts and circumstances which are relevant to measures for our national defense and for the successful prosecution of the war, and which may in fact place citizens of one ancestry in a different category from others. 'We must never forget, that it is a constitution we are expounding', 'a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs'. McCulloch v. Maryland, 4 Wheat. 316, 407, 415, 4 L.Ed. 579. The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant. Cf. State of Ohio ex rel. Clarke v. Deckebach, 274 U.S. 392, 47 S.Ct. 630, 71 L.Ed. 1115, and cases cited. Here the aim of Congress and the Executive was the protection against sabotage of war materials and utilities in areas thought to be in danger of Japanese invasion and air attack. We have stated in detail facts and circumstances with respect to the American citizens of Japanese ancestry residing on the Pacific Coast which support the judgment of the warwaging branches of the Government that some restrictive measure was urgent. We cannot say that these facts and circumstances, considered in the particular war setting, could afford no ground for differentiating citizens of Japanese ancestry from other groups in the United States. The fact alone that attack on our shores was threatened by Japan rather than another enemy power set these citizens apart from others who have no particular associations with Japan. Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew. We cannot close our eyes to the fact, demonstrated by experience, that in time of war residents having

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ethnic affiliations with an invading enemy may be a greater source of danger than those of a different ancestry. Nor can we deny that Congress, and the military authorities acting with its authorization, have constitutional power to appraise the danger in the light of facts of public notoriety. We need not now attempt to define the ultimate boundaries of the war power. We decide only the issue as we have defined it—we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power. In this case it is enough that circumstances within the knowledge of those charged with the responsibility for maintaining the national defense afforded a rational basis for the decision which they made. Whether we would have made it is irrelevant. What we have said also disposes of the contention that the curfew order involved an unlawful delegation by Congress of its legislative power. The mandate of the Constitution, Art. 1, § 1, that all legislative power granted 'shall be vested in a Congress' has never been thought, even in the administration of civil affairs, to preclude Congress from resorting to the aid of executive or administrative officers in determining by findings whether the facts are such as to call for the application of previously adopted legislative standards or definitions of Congressional policy. The purpose of Executive Order No. 9066, and the standard which the President approved for the orders authorized to be promulgated by the military commander—as disclosed by the preamble of the Executive Order—was the protection of our war resources against espionage and sabotage. Public Proclamations No. 1 and 2, by General DeWitt, contain findings that the military areas created and the measures to be prescribed for them were required to establish safeguards against espionage and sabotage. Both the Executive Order and the Proclamations were before Congress when the Act of March 21, 1942, was under consideration. To the extent that the Executive Order authorized orders to be promulgated by the military commander to accomplish the declared purpose of the Order, and to the extent that the findings in the Proclamations establish that such was their purpose, both have been approved by Congress. It is true that the Act does not in terms establish a particular standard to which orders of the military commander are to conform, or require findings to be made as a prerequisite to any order. But the Executive Order, the Proclamations and the statute are not to be read in isolation from each other. They were parts of a single program and must be judged as such. The Act of March 21, 1942, was an adoption by Congress of the Executive Order and of the Proclamations. The Proclamations themselves followed a standard authorized by the Executive Order—the necessity of protecting military resources in the designated areas against espionage and sabotage. And by the Act, Congress gave its approval to that standard. We have no need to consider now the validity of action if taken by the military commander without conforming to this standard approved by Congress, or the validity of orders made without the support of findings showing that they do so conform. Here the findings of danger from espionage and sabotage, and of the necessity of the curfew order to protect against them, have been duly made. General DeWitt's Public Proclamation No. 3, which established the curfew, merely prescribed regulations of the type and in the manner which Public Proclamations No. 1 and 2 had announced would be prescribed at a future date, and was thus founded on the findings of Proclamations No. 1 and 2. The military commander's appraisal of facts in the light of the authorized standard, and the inferences which he drew from those facts, involved the exercise of his informed judgment. But as we have seen, those facts, and the inferences which could be rationally drawn from them, support the judgment of the military commander, that the danger of espionage and sabotage to our military resources was imminent, and that the curfew order was an appropriate measure to meet it. Where, as in the present case, the standard set up for the guidance of the military commander, and the action taken and the reasons for it, are in fact recorded in the military orders, so that Congress, the courts and the public are assured that the orders, in the judgment

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of the commander, conform to the standards approved by the President and Congress, there is no failure in the performance of the legislative function. Opp Cotton Mills v. Administrator, 312 U.S. 126, 142-146, 657, 61 S.Ct. 524, 531, 533, 85 L.Ed. 624, and cases cited. The essentials of that function are the determination by Congress of the legislative policy and its approval of a rule of conduct to carry that policy into execution. The very necessities which attend the conduct of military operations in time of war in this instance as in many others preclude Congress from holding committee meetings to determine whether there is danger, before it enacts legislation to combat the danger. The Constitution as a continuously operating charter of government does not demand the impossible or the impractical. The essentials of the legislative function are preserved when Congress authorizes a statutory command to become operative, upon ascertainment of a basic conclusion of fact by a designated representative of the Government. Cf. The Aurora, 7 Cranch 382, 3 L.Ed. 378; United States v. Chemical Foundation, 272 U.S. 1, 12, 47 S.Ct. 1, 5, 71 L.Ed. 131. The present statute, which authorized curfew orders to be made pursuant to Executive Order No. 9066 for the protection of war resources from espionage and sabotage, satisfies those requirements. Under the Executive Order the basic facts, determined by the military commander in the light of knowledge then available, were whether that danger existed and whether a curfew order was an appropriate means of minimizing the danger. Since his findings to that effect were, as we have said, not without adequate support, the legislative function was performed and the sanction of the statute attached to violations of the curfew order. It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order. The conviction under the second count is without constitutional infirmity. Hence we have no occasion to review the conviction on the first count since, as already stated, the sentences on the two counts are to run concurrently and conviction on the second is sufficient to sustain the sentence. For this reason also it is unnecessary to consider the Government's argument that compliance with the order to report at the Civilian Control Station did not necessarily entail confinement in a relocation center. Affirmed. Mr. Justice DOUGLAS concurring. While I concur in the result and agree substantially with the opinion of the Court, I wish to add a few words to indicate what for me is the narrow ground of decision. After the disastrous bombing of Pearl Harbor the military had a grave problem on its hands. The threat of Japanese invasion of the west coast was not fanciful but real. The presence of many thousands of aliens and citizens of Japanese ancestry in or near to the key points along that coast line aroused special concern in those charged with the defense of the country. They believed that not only among aliens but also among citizens of Japanese ancestry there were those who would give aid and comfort to the Japanese invader and act as a fifth column before and during an invasion.1 If the military were right in their belief that among citizens of Japanese ancestry there was an actual or incipient fifth column, we were indeed faced with the imminent threat of a dire emergency. We must credit the military with as much good faith in that belief as we would any other public official acting pursuant to his duties. We cannot possibly know all the facts which lay behind that decision. Some of them may have been as intangible and as imponderable as the factors which influence personal or business decisions in daily life. The point is that we cannot sit in judgment on the military requirements of that hour. Where the orders under the present Act have some relation to 'protection against espionage and against sabotage', our task is at an end. Much of the argument assumes that as a matter of policy it might have been wiser for the military to have dealt with these people on an individual basis and through the process of

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investigation and hearings separated those who were loyal from those who were not. But the wisdom or expediency of the decision which was made is not for us to review. Nor are we warranted where national survival is at stake in insisting that those orders should not have been applied to anyone without some evidence of his disloyalty. The orders as applied to the petitioner are not to be tested by the substantial evidence rule. Peacetime procedures do not necessarily fit wartime needs. It is said that if citizens of Japanese ancestry were generally disloyal, treatment on a group basis might be justified. But there is no difference in power when the number of those who are finally shown to be disloyal or suspect is reduced to a small per cent. The sorting process might indeed be as time-consuming whether those who were disloyal or suspect constituted nine or ninety-nine per cent. And the pinch of the order on the loyal citizens would be as great in any case. But where the peril is great and the time is short, temporary treatment on a group basis may be the only practicable expedient whatever the ultimate percentage of those who are detained for cause. Nor should the military be required to wait until espionage or sabotage becomes effective before it moves. It is true that we might now say that there was ample time to handle the problem on the individual rather than the group basis. But military decisions must be made without the benefit of hindsight. The orders must be judged as of the date when the decision to issue them was made. To say that the military in such cases should take the time to weed out the loyal from the others would be to assume that the nation could afford to have them take the time to do it. But as the opinion of the Court makes clear, speed and dispatch may be of the essence. Certainly we cannot say that those charged with the defense of the nation should have procrastinated until investigations and hearings were completed. At that time further delay might indeed have seemed to be wholly incompatible with military responsibilities. Since we cannot override the military judgment which lay behind these orders, it seems to me necessary to concede that the army had the power to deal temporarily with these people on a group basis. Petitioner therefore was not justified in disobeying the orders. But I think it important to emphasize that we are dealing here with a problem of loyalty not assimilation. Loyalty is a matter of mind and of heart not of race. That indeed is the history of America. Moreover, guilt is personal under our constitutional system. Detention for reasonable cause is one thing. Detention on account of ancestry is another. In this case the petitioner tendered by a plea in abatement the question of his loyalty to the United States. I think that plea was properly stricken; military measures of defense might be paralyzed if it were necessary to try out that issue preliminarily. But a denial of that opportunity in this case does not necessarily mean that petitioner could not have had a hearing on that issue in some appropriate proceeding. Obedience to the military orders is one thing. Whether an individual member of a group must be afforded at some stage an opportunity to show that, being loyal, he should be reclassified is a wholly different question. There are other instances in the law where one must obey an order before he can attack as erroneous the classification in which he has been placed. Thus it is commonly held that one who is a conscientious objector has no privilege to defy the Selective Service Act and to refuse or fail to be inducted. He must submit to the law. But that line of authority holds that after induction he may obtain through habeas corpus a hearing on the legality of his classification by the draft board.2 Whether in the present situation that remedy would be available is one of the large and important issues reserved by the present decision. It has been suggested that an administrative procedure has been established to relieve against unwarranted applications of these orders. Whether in that event the administrative remedy would be the only one available or would have to be first exhausted is also reserved. The scope of any relief which might be afforded—whether the liberties of an applicant could be restored only outside the areas in question—is likewise a distinct issue. But if it were plain that no machinery was available whereby the individual could demonstrate his loyalty as a citizen in order to be reclassified, questions of a more serious character would be presented. The United States, however, takes

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no such position. We need go no further here than to deny the individual the right to defy the law. It is sufficient to say that he cannot test in that way the validity of the orders as applied to him. Mr. Justice MURPHY, concurring. It is not to be doubted that the action taken by the military commander in pursuance of the authority conferred upon him was taken in complete good faith and in the firm conviction that it was required by considerations of public safety and military security. Neither is it doubted that the Congress and the Executive working together may generally employ such measures as are necessary and appropriate to provide for the common defense and to wage war 'with all the force necessary to make it effective.' United States v. Macintosh, 283 U.S. 605, 622, 51 S.Ct. 570, 574, 75 L.Ed. 1302. This includes authority to exercise measures of control over persons and property hich would not in all cases be permissible in normal times.1 It does not follow, however, that the broad guaranties of the Bill of Rights and other provisions of the Constitution protecting essential liberties are suspended by the mere existence of a state of war. It has been frequently stated and recognized by this Court that the war power, like the other great substantive powers of government, is subject to the limitations of the Constitution. See Ex parte Milligan, 4 Wall. 2, 18 L.Ed. 281; Hamilton v. Kentucky Distilleries Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194; Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. We give great deference to the judgment of the Congress and of the military authorities as to what is necessary in the effective prosecution of the war, but we can never forget that there are constitutional boundaries which it is our duty to uphold. It would not be supposed, for instance, that public elections could be suspended or that the prerogatives of the courts could be set aside, or that persons not charged with offenses against the law of war (see Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2, 87 L.Ed. —-) could be deprived of due process of law and the benefits of trial by jury, in the absence of a valid declaration of martial law. Cf. Ex parte Milligan, supra. Distinctions based on color and ancestry are utterly inconsistent with our traditions and ideals. They are at variance with the principles for which we are now waging war. We cannot close our eyes to the fact that for centuries the Old World has been torn by racial and religious conflicts and has suffered the worst kind of anguish because of inequality of treatment for different groups. There was one law for one and a different law for another. Nothing is written more firmly into our law than the compact of the Plymouth voyagers to have just and equal laws. To say that any group cannot be assimilated is to admit that the great American experiment has failed, that our way of life has failed when confronted with the normal attachment of certain groups to the lands of their forefathers. As a nation we embrace many groups, some of them among the oldest settlements in our midst, which have isolated themselves for religious and cultural reasons. Today is the first time, so far as I am aware, that we have sustained a substantial restriction of the personal liberty of citizens of the United States based upon the accident of race or ancestry. Under the curfew order here challenged no less than 70,000 American citizens have been placed under a special ban and deprived of their liberty because of their particular racial inheritance. In this sense it bears a melancholy resemblance to the treatment accorded to members of the Jewish race in Germany and in other parts of Europe. The result is the creation in this country of two classes of citizens for the purposes of a critical and perilous hour—to sanction discrimination between groups of United States citizens on the basis of ancestry. In my opinion this goes to the very brink of constitutional power. Except under conditions of great emergency a regulation of this kind applicable solely to citizens of a particular racial extraction would not be regarded as in accord with the requirement of due process of law contained in the Fifth Amendment. We have consistently held that attempts to apply regulatory action to particular groups solely on the basis of racial distinction or

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classification is not in accordance with due process of law as prescribed by the Fifth and Fourteenth Amendments. Cf. Yick Wo. v. Hopkins, 118 U.S. 356, 369, 6 S.Ct. 1064, 1070, 30 L.Ed. 220; Yu Con Eng v. Trinidad, 271 U.S. 500, 524—528, 46 S.Ct. 619, 625, 626, 70 L.Ed. 1059. See also Boyd v. Frankfort, 117 Ky. 199, 77 S.W. 669, 111 Am.St.Rep. 240; Opinion of the Justices, 207 Mass. 601, 94 N.E. 558, 34 L.R.A.,N.S., 604. It is true that the Fifth Amendment, unlike the Fourteenth, contains no guarantee of equal protection of the laws. Cf. Currin v. Wallace, 306 U.S. 1, 14, 59 S.Ct. 379, 386, 83 L.Ed. 441. It is also true that even the guaranty of equal protection of the laws allows a measure of reasonable classification. It by no means follows, however, that there may not be discrimination of such an injurious character in the application of laws as to amount to a denial of due process of law as that term is used in the Fifth Amendment.2 I think that point is dangerously approached when we have one law for the majority of our citizens and another for those of a particular racial heritage. In view, however, of the critical military situation which prevailed on the Pacific Coast area in the spring of 1942, and the urgent necessity of taking prompt and effective action to secure defense installations and military operations against the risk of sabotage and espionage, the military authorities should not be required to conform to standards of regulatory action appropriate to normal times. Because of the damage wrought by the Japanese at Pearl Harbor and the availability of new weapons and new techniques with greater capacity for speed and deception in offensive operations, the immediate possibility of an attempt at invasion somewhere along the Pacific Coast had to be reckoned with. However desirable such a procedure might have been, the military authorities could have reasonably concluded at the time that determinations as to the loyalty and dependability of individual members of the large and widely scattered group of persons of Japanese extraction on the West Coast could not be made without delay that might have had tragic consequences. Modern war does not always wait for the observance of procedural requirements that are considered essential and appropriate under normal conditions. Accordingly I think that the military arm, confronted with the peril of imminent enemy attack and acting under the authority conferred by the Congress, made an allowable judgment at the time the curfew restriction was imposed. Whether such a restriction is valid today is another matter. In voting for affirmance of the judgment I do not wish to be understood as intimating that the military authorities in time of war are subject to no restraints whatsoever, or that they are free to impose any restrictions they may choose on the rights and liberties of individual citizens or groups of citizens in those places which may be designated as 'military areas'. While this Court sits, it has the inescapable duty of seeing that the mandates of the Constitution are obeyed. That duty exists in time of war as well as in time of peace, and in its performance we must not forget that few indeed have been the invasions upon essential liberties which have not been accompanied by pleas of urgent necessity advanced in good faith by responsible men. Cf. Mr. Justice Brandeis concurring in Whitney v. Cal fornia, 274 U.S. 357, 372, 47 S.Ct. 641, 647, 71 L.Ed. 1095. Nor do I mean to intimate that citizens of a particular racial group whose freedom may be curtailed within an area threatened with attack should be generally prevented from leaving the area and going at large in other areas that are not in danger of attack and where special precautions are not needed. Their status as citizens, though subject to requirements of national security and military necessity, should at all times be accorded the fullest consideration and respect. When the danger is past, the restrictions imposed on them should be promptly removed and their freedom of action fully restored. Mr. Justice RUTLEDGE, concurring. I concur in the Court's opinion, except for the suggestion, if that is intended (as to which I make no assertion), that the courts have no power to review any action a military officer may 'in his discretion' find it necessary to take with respect to civilian citizens in military areas or zones,

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once it is found that an emergency has created the conditions requiring or justifying the creation of the area or zone and the institution of some degree of military control short of suspending habeas corpus. Given the generating conditions for exercise of military authority and recognizing the wide latitude for particular applications that ordinarily creates, I do not think it is necessary in this case to decide that there is no action a person in the position of General De Witt here may take, and which he may regard as necessary to the region's or the country's safety, which will call judicial power into play. The officer of course must have wide discretion and room for its operation. But it does not follow there may not be bounds beyond which he cannot go and, if he oversteps them, that the courts may not have power to protect the civilian citizen. But in this case that question need not be faced and I merely add my reservation without indication of opinion concerning it. 1 State Distribution of War Supply and Facility Contracts June 1940 through December 194 (issued by Office of Production Management, Bureau of Research and Statistics, January 18, 1942); Ibid.—Cumulative through February 1943 (issued by War Production Board, Statistics Division, April 3, 1943). 2 See 'Attack upon Pearl Harbor by Japanese Armed Forces', Report of the Commission Appointed by the President, dated January 23, 1942, S.Doc. No. 159, 77th Cong., 2d Sess., pp. 12, 13. 3 Sixteenth Census of the United States, for 1940, Population, Second Series, Characteristics of the Population (Dep't. of Commerce): California, pp. 10, 61; Oregon, pp. 10, 50; Washington, pp. 10, 52. See also H.R.Rep. No. 2124, 77th Cong., 2d Sess., pp. 91-100. 4 Federal legislation has denied to the Japanese citizenship by naturalization (R.S. § 2169; 8 U.S.C. § 703, 8 U.S.C.A. § 703; see Ozawa v. United States, 260 U.S. 178, 43 S.Ct. 65, 67 L.Ed. 199), and the Immigration Act of 1924 excluded them from admission into the United States. 43 Stat. 161, 8 U.S.C. § 213, 8 U.S.C.A. § 213. State legislation has denied to alien Japanese the privilege of owning land. 1 California General Laws (Deering, 1931), Act 261; 5 Oregon Comp. Laws Ann. (1940), § 61-102; 11 Washington Rev.Stat.Ann. (Remington, 1933), §§ 10581, 10582. It has also sought to prohibit intermarriage of persons of Japanese race with Caucasians. Montana Rev.Codes 1935, § 5702. Persons of Japanese descent have often been unable to secure professional or skilled employment except in association with others of that descent, and sufficient employment opportunities of this character have not been available. Mears, Resident Orientals on the American Pacific Coast (1927), pp. 188, 198-209, 402, 403; H.R.Rep. No. 2124, 77th Cong., 2d Sess., pp. 101-138. 5 Hearings before the Select Committee Investigating National Defense Migration, House of Representatives, 77th Cong., 2d Sess., pp. 11702, 11393-11394, 11348. 6 H.R.Rep. No. 1911, 77th Cong., 2d Sess., p. 16. 7 Nationality Law of Japan, Article 1 and Article 20, § 3, and Regulations (Ordinance No. 26) of November 17, 1924,—all printed in Flournoy and Hudson, Nationality Laws (1929), pp. 382, 384-387. See also Foreign Relations of the United States, 1924, vol. 2, pp. 411-413. 8 Statistics released in 1927 by the Consul General of Japan at San Francisco asserted that over 51,000 of the approximately 63,000 American-born persons of Japanese parentage then in the western part of the United States held Japanese citizenship. Mears, Resident Orientals on the American Pacific Coast, pp. 107-08, 429. A census conducted under the auspices of the Japanese government in 1930 asserted that approximately 47% of American- born persons of Japanese parentage in California held dual citizenship. Strong, The Second- Generation Japanese Problem (1934), p. 142. 9 H.R.Rep. No. 1911, 77th Cong., 2d Sess., p. 17.

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1 Judge Fee stated in United States v. Yasui, D.C., 48 F.Supp. 40, 44, 45, the companion case to the present one, 'The areas and zones outlined in the proclamations became a theatre of operations, subjected in localities to attack and all threatened during this period with a full scale invasion. The danger at the time this prosecution was instituted was imminent and immediate. The difficulty of controlling members of an alien race, many of whom, although citizens, were disloyal with opportunities of sabotage and espionage, with invasion imminent, presented a problem requiring for solution ability and devotion of the highest order.' 2 See United States v. Powell, D.C., 38 F.Supp. 183; Application of Greenberg, D.C., 39 F.Supp. 13; United States v. Baird, D.C., 39 F.Supp. 392; Micheli v. Paullin, D.C., 45 F.Supp. 687; United States v. Embrey, D.C., 46 F.Supp. 916; In re Rogers, D.C., 47 F.Supp. 265; Ex parte Stewart, D.C., 47 F.Supp. 410; United States v. Smith, D.C., 48 F.Supp. 842; Ex parte Robert, D.C., 49 F.Supp. 131; United States v. Grieme, 3 Cir., 128 F.2d 811; Fletcher v. United States, 5 Cir., 129 F.2d 262; Drumheller v. Berks County Local Board No. 1, 3 Cir., 130 F.2d 610, 612. For cases arising under the Selective Draft Act of 1917, 50 U.S.C.A. Appendix § 201 et seq. see United States v. Kinkead, 3 Cir., 250 F. 692; Ex parte McDonald, D.C., 253 F. 99; Ex parte Cohen, D.C., 254 F. 711; Arbitman v. Woodside, 4 Cir., 258 F. 441; Ex parte Thierit, 6 Cir., 268 F. 472, 476. And see 10 Geo.Wash.L.Rev. 827. 1 Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Debs v. United States, 249 U.S. 211, 39 S.Ct. 252, 63 L.Ed. 566; United States v. Bethlehem Steel Corp., 315 U.S. 289, 305, 62 S.Ct. 581, 589, 86 L.Ed. 855; Northern Pac. Ry. Co. v. North Dakota, 250 U.S. 135, 39 S.Ct. 502, 63 L.Ed. 897; Dakota Cent. Tel. Co. v. South Dakota, 250 U.S. 163, 39 S.Ct. 507, 63 L.Ed. 910, 4 A.L.R. 1623; Highland v. Russell Car & Snow-plow Co., 279 U.S. 253, 49 S.Ct. 314, 73 L.Ed. 688; Selective Draft Law Cases (Arver v. United States), 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349, L.R.A.1918C, 361, Ann.Cas.1918B, 856. 2 For instance, if persons of an accused's race were systematically excluded from a jury in a federal court, any conviction undoubtedly would be considered a violation of the requirement of due process of law, even though the ground commonly stated for setting aside convictions to obtained in state courts is denial of equal protection of the laws. Cf. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680, with Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84.

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323 U.S. 214 65 S.Ct. 193 89 L.Ed. 194 TOYOSABURO KOREMATSU v. UNITED STATES. No. 22. Argued Oct. 11, 12, 1944. Decided Dec. 18, 1944. Rehearing Denied Feb. 12, 1945. Mr. Wayne M. Collins, of San Francisco, Cal., and Mr. Charles A. Horsky, of Washington, D.C., for petitioner. Mr. Charles Fahy, Sol. Gen., of Washington, D.C., for respondent. Mr. Justice BLACK delivered the opinion of the Court. The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a 'Military Area', contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner's loyalty to the United States. The Circuit Court of Appeals affirmed,1 and the importance of the constitutional question involved caused us to grant certiorari. It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can. In the instant case prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, 18 U.S.C.A. § 97a, which provides that '* * * whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.' Exclusion Order No. 34, which the petitioner knowingly and admittedly violated was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that 'the successful prosecution of the war requires every possible protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities. * * *' One of the series of orders and proclamations, a curfew order, which like the exclusion order here was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed

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as a 'protection against espionage and against sabotage.' In Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage. The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities and of the President, as Commander in Chief of the Army; and finally that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack. In the light of the principles we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did. True, exclusion from the area in which one's home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas. In this case the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that by May 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions we are compelled to reject them. Here, as in the Hirabayashi case, supra, 320 U.S. at page 99, 63 S.Ct. at page 1385, 87 L.Ed. 1774, '* * * we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.' Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was for the same reason a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.2 We uphold the exclusion order as of the time it was made and when the petitioner violated it. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 547, 44 S.Ct. 405, 406, 68 L.Ed.

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841; Block v. Hirsh, 256 U.S. 135, 154, 155, 41 S.Ct. 458, 459, 65 L.Ed. 865, 16 A.L.R. 165. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Cf. Ex parte Kumezo Kawato, 317 U.S. 69, 73, 63 S.Ct. 115, 117, 87 L.Ed. 58. But hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities as well as its privileges, and in time of war the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when under conditions of modern warfare our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger. It is argued that on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands. There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time 'until and to the extent that a future proclamation or order should so permit or direct.' 7 Fed.Reg. 2601. That 'future order', the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did 'direct' exclusion from the area of all persons of Japanese ancestry, before 12 o'clock noon, May 9; furthermore it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942 Act of Congress. Consequently, the only order in effect touching the petitioner's being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order, which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that on May 30, 1942, he was subject to punishment, under the March 27 and May 3rd orders, whether he remained in or left the area. It does appear, however, that on May 9, the effective date of the exclusion order, the military authorities had already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry, at central points, designated as 'assembly centers', in order 'to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from military area No. 1 to restrict and regulate such migration.' Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand. We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner's remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center we cannot say either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems and may be governed by different principles. The lawfulness of one does not necessarily determine the

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lawfulness of the others. This is made clear when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. Cf. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306. There is no reason why violations of these orders, insofar as they were promulgated pursuant to congressional enactment, should not be treated as separate offenses. The Endo case (Ex parte Mitsuye Endo) 323 U.S. 283, 65 S.Ct. 208, graphically illustrates the difference between the validity of an order to exclude and the validity of a detention order after exclusion has been effected. Since the petitioner has not been convicted of failing to report or to remain in an assembly or relocation center, we cannot in this case determine the validity of those separate provisions of the order. It is sufficient here for us to pass upon the order which petitioner violated. To do more would be to go beyond the issues raised, and to decide momentous questions not contained within the framework of the pleadings or the evidence in this case. It will be time enough to decide the serious constitutional issues which petitioner seeks to raise when an assembly or relocation order is applied or is certain to be applied to him, and we have its terms before us. Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order No. 34, Korematsu was under compulsion to leave the area not as he would choose but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid. It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers—and we deem it unjustifiable to call them concentration camps with all the ugly connotations that term implies—we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and finally, because Congress, reposing its confidence in this time of war in our military leaders—as inevitably it must— determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot—by availing ourselves of the calm perspective of hindsight—now say that at that time these actions were unjustified. Affirmed.

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Mr. Justice FRANKFURTER, concurring. According to my reading of Civilian Exclusion Order No. 34, it was an offense for Korematsu to be found in Military Area No. 1, the territory wherein he was previously living, except within the bounds of the established Assembly Center of that area. Even though the various orders issued by General DeWitt be deemed a comprehensive code of instructions, their tenor is clear and not contradictory. They put upon Korematsu the obligation to leave Military Area No. 1, but only by the method prescribed in the instructions, i.e., by reporting to the Assembly Center. I am unable to see how the legal considerations that led to the decision in Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, fail to sustain the military order which made the conduct now in controversy a crime. And so I join in the opinion of the Court, but should like to add a few words of my own. The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is 'the power to wage war successfully.' Hirabayashi v. United States, supra, 320 U.S. at page 93, 63 S.Ct. at page 1382, 87 L.Ed. 1774 and see Home Bldg. & L. Ass'n v. Blaisdell, 290 U.S. 398, 426, 54 S.Ct. 231, 235, 78 L.Ed. 413, 88 A.L.R. 1481. Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as 'an unconstitutional order' is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. 'The war power of the United States, like its other powers * * * is subject to applicable constitutional limitations', Hamilton v. Kentucky Distilleries, Co., 251 U.S. 146, 156, 40 S.Ct. 106, 108, 64 L.Ed. 194. To recognize that military orders are 'reasonably expedient military precautions' in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialectic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action by the military is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce. And being an exercise of the war power explicitly granted by the Constitution for safeguarding the national life by prosecuting war effectively, I find nothing in the Constitution which denies to Congress the power to enforce such a valid military order by making its violation an offense triable in the civil courts. Compare Interstate Commerce Commission v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047; Id., 155 U.S. 3, 15 S.Ct. 19, 39 L.Ed. 49, and Monongahela Bridge Co. v. United States, 216 U.S. 177, 30 S.Ct. 356, 54 L.Ed. 435. To find that the Constitution does not forbid the military measures now complained of does not carry with it approval of that which Congress and the Executive did. That is their business, not ours. Mr. Justice ROBERTS. I dissent, because I think the indisputable facts exhibit a clear violation of Constitutional rights. This is not a case of keeping people off the streets at night as was Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to

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himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated. The Government's argument, and the opinion of the court, in my judgment, erroneously divide that which is single and indivisible and thus make the case appear as if the petitioner violated a Military Order, sanctioned by Act of Congress, which excluded him from his home, by refusing voluntarily to leave and, so, knowingly and intentionally, defying the order and the Act of Congress. The petitioner, a resident of San Leandro, Alameda County, California, is a native of the United States of Japanese ancestry who, according to the uncontradicted evidence, is a loyal citizen of the nation. A chronological recitation of events will make it plain that the petitioner's supposed offense did not, in truth, consist in his refusal voluntarily to leave the area which included his home in obedience to the order excluding him therefrom. Critical attention must be given to the dates and sequence of events. December 8, 1941, the United States declared war on Japan. February 19, 1942, the President issued Executive Order No. 9066,1 which, after stating the reason for issuing the order as 'protection against espionage and against sabotage to national-defense material, national-defense premises, and national-defense utilities', provided that certain Military Commanders might, in their discretion, 'prescribe military areas' and define their extent, 'from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions' the 'Military Commander may impose in his discretion.' February 20, 1942, Lieutenant General DeWitt was designated Military Commander of the Western Defense Command embracing the westernmost states of the Union,—about one- fourth of the total area of the nation. March 2, 1942, General DeWitt promulgated Public Proclamation No. 1,2 which recites that the entire Pacific Coast is 'particularly subject to attack, to attempted invasion * * * and, in connection therewith, is subject to espionage and acts of sabotage'. It states that 'as a matter of military necessity' certain military areas and zones are established known as Military Areas Nos. 1 and 2. It adds that 'Such persons or classes of persons as the situation may require' will, by subsequent orders, 'be excluded from all of Military Area No. 1' and from certain zones in Military Area No. 2. Subsequent proclamations were made which, together with Proclamation No. 1, included in such areas and zones all of California, Washington, Oregon, Idaho, Montana, Nevada and Utah, and the southern portion of Arizona. The orders required that if any person of Japanese, German or Italian ancestry residing in Area No. 1 desired to change his habitual residence he must execute and deliver to the authorities a Change of Residence Notice. San Leandro, the city of petitioner's residence, lies in Military Area No. 1. On March 2, 1942, the petitioner, therefore, had notice that, by Executive Order, the President, to prevent espionage and sabotage, had authorized the Military to exclude him from certain areas and to prevent his entering or leaving certain areas without permission. He was on notice that his home city had been included, by Military Order, in Area No. 1, and he was on notice further that, at sometime in the future, the Military Commander would make an order for the exclusion of certain persons, not described or classified, from various zones including that in which he lived. March 21, 1942, Congress enacted3 that anyone who knowingly 'shall enter, remain in, leave, or commit any act in any military area or military zone prescribed * * * by any military commander * * * contrary to the restrictions applicable to any such area or zone or contrary to

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the order of * * * any such military commander' shall be guilty of a misdemeanor. This is the Act under which the petitioner was charged. March 24, 1942, General DeWitt instituted the curfew for certain areas within his command, by an order the validity of which was sustained in Hirabayashi v. United States, supra. March 24, 1942, General DeWitt began to issue a series of exclusion orders relating to specified areas. March 27, 1942, by Proclamation No. 4,4 the General recited that 'it is necessary, in order to provide for the welfare and to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1 to restrict and regulate such migration'; and ordered that, as of March 29, 1942, 'all alien Japanese and persons of Japanese ancestry who are within the limits of Military Area No. 1, be and they are hereby prohibited from leaving that area for any purpose until and to the extent that a future proclamation or order of this headquarters shall so permit or direct.'5 No order had been made excluding the petitioner from the area in which he lived. By Proclamation No. 4 he was, after March 29, 1942, confined to the limits of Area No. 1. If the Executive Order No. 9066 and the Act of Congress meant what they said, to leave that area, in the face of Proclamation No. 4, would be to commit a misdemeanor. May 3, 1942, General DeWitt issued Civilian Exclusion Order No. 346 providing that, after 12 o'clock May 8, 1942, all persons of Japanese ancestry, both alien and non-alien, were to be excluded from a described portion of Military Area No. 1, which included the County of Alameda, California. The order required a responsible member of each family and each individual living alone to report, at a time set, at a Civil Control Station for instructions to go to an Assembly Center, and added that any person failing to comply with the provisions of the order who was found in the described area after the date set would be liable to prosecution under the Act of March 21, 1942, supra. It is important to note that the order, by its express terms, had no application to persons within the bounds 'of an established Assembly Center pursuant to instructions from this Headquarters * * *.' The obvious purpose of the orders made, taken together, was to drive all citizens of Japanese ancestry into Assembly Centers within the zones of their residence, under pain of criminal prosecution. The predicament in which the petitioner thus found himself was this: He was forbidden, by Military Order, to leave the zone in which he lived; he was forbidden, by Military Order, after a date fixed, to be found within that zone unless he were in an Assembly Center located in that zone. General DeWitt's report to the Secretary of War concerning the programme of evacuation and relocation of Japanese makes it entirely clear, if it were necessary to refer to that document,—and, in the light of the above recitation, I think it is not,—that an Assembly Center was a euphemism for a prison. No person within such a center was permitted to leave except by Military Order. In the dilemma that he dare not remain in his home, or voluntarily leave the area, without incurring criminal penalties, and that the only way he could avoid punishment was to go to an Assembly Center and submit himself to military imprisonment, the petitioner did nothing. June 12, 1942, an Information was filed in the District Court for Northern California charging a violation of the Act of March 21, 1942, in that petitioner had knowingly remained within the area covered by Exclusion Order No. 34. A demurrer to the information having been overruled, the petitioner was tried under a plea of not guilty and convicted. Sentence was suspended and he was placed on probation for five years. We know, however, in the light of the foregoing recitation, that he was at once taken into military custody and lodged in an Assembly Center. We further know that, on March 18, 1942, the President had promulgated Executive Order No. 91027 establishing the War Relocation Authority under which so-called Relocation Centers, a euphemism for concentration camps, were established pursuant to cooperation between the military authorities of the Western Defense Command and the Relocation

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Authority, and that the petitioner has been confined either in an Assembly Center, within the zone in which he had lived or has been removed to a Relocation Center where, as the facts disclosed in Ex parte Mitsuye Endo, 323 U.S. 283, 65 S.Ct. 208, demonstrate, he was illegally held in custody. The Government has argued this case as if the only order outstanding at the time the petitioner was arrested and informed against was Exclusion Order No. 34 ordering him to leave the area in which he resided, which was the basis of the information against him. That argument has evidently been effective. The opinion refers to the Hirabayashi case, supra, to show that this court has sustained the validity of a curfew order in an emergency. The argument then is that exclusion from a given area of danger, while somewhat more sweeping than a curfew regulation, is of the same nature,—a temporary expedient made necessary by a sudden emergency. This, I think, is a substitution of an hypothetical case for the case with the court's the court. I might agree with the court's disposition of the hypothetical case.8 The liberty of every American citizen freely to come and to go must frequently, in the face of sudden danger, be temporarily limited or suspended. The civil authorities must often resort to the expedient of excluding citizens temporarily from a locality. The drawing of fire lines in the case of a conflagration, the removal of persons from the area where a pestilence has broken out, are familiar examples. If the exclusion worked by Exclusion Order No. 34 were of that nature the Hirabayashi case would be authority for sustaining it. But the facts above recited, and those set forth in Ex parte Metsuye Endo, supra, show that the exclusion was but a part of an over-all plan for forceable detention. This case cannot, therefore, be decided on any such narrow ground as the possible validity of a Temporary Exclusion Order under which the residents of an area are given an opportunity to leave and go elsewhere in their native land outside the boundaries of a military area. To make the case turn on any such assumption is to shut our eyes to reality. As I have said above, the petitioner, prior to his arrest, was faced with two diametrically contradictory orders given sanction by the Act of Congress of March 21, 1942. The earlier of those orders made him a criminal if he left the zone in which he resided; the later made him a criminal if he did not leave. I had supposed that if a citizen was constrained by two laws, or two orders having the force of law, and obedience to one would violate the other, to punish him for violation of either would deny him due process of law. And I had supposed that under these circumstances a conviction for violating one of the orders could not stand. We cannot shut our eyes to the fact that had the petitioner attempted to violate Proclamation No. 4 and leave the military area in which he lived he would have been arrested and tried and convicted for violation of Proclamation No. 4. The two conflicting orders, one which commanded him to stay and the other which commanded him to go, were nothing but a cleverly devised trap to accomplish the real purpose of the military authority, which was to lock him up in a concentration camp. The only course by which the petitioner could avoid arrest and prosecution was to go to that camp according to instructions to be given him when he reported at a Civil Control Center. We know that is the fact. Why should we set up a figmentary and artificial situation instead of addressing ourselves to the actualities of the case? These stark realities are met by the suggestion that it is lawful to compel an American citizen to submit to illegal imprisonment on the assumption that he might, after going to the Assembly Center, apply for his discharge by suing out a writ of habeas corpus, as was done in the Endo case, supra. The answer, of course, is that where he was subject to two conflicting laws he was not bound, in order to escape violation of one of the other, to surrender his liberty for any period. Nor will it do to say that the detention was a necessary part of the process of evacuation, and so we are here concerned only with the validity of the latter. Again it is a new doctrine of constitutional law that one indicted for disobedience to an unconstitutional statute may not defend on the ground of the invalidity of the statute but must obey it though he knows it is no law and, after he has suffered the disgrace of conviction and

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lost his liberty by sentence, then, and not before, seek, from within prison walls, to test the validity of the law. Moreover, it is beside the point to rest decision in part on the fact that the petitioner, for his own reasons, wished to remain in his home. If, as is the fact he was constrained so to do, it is indeed a narrow application of constitutional rights to ignore the order which constrained him, in order to sustain his conviction for violation of another contradictory order. I would reverse the judgment of conviction. Mr. Justice MURPHY, dissenting. This exclusion of 'all persons of Japanese ancestry, both alien and non-alien,' from the Pacific Coast area on a plea of military necessity in the absence of martial law ought not to be approved. Such exclusion goes over 'the very brink of constitutional power' and falls into the ugly abyss of racism. In dealing with matters relating to the prosecution and progress of a war, we must accord great respect and consideration to the judgments of the military authorities who are on the scene and who have full knowledge of the military facts. The scope of their discretion must, as a matter of necessity and common sense, be wide. And their judgments ought not to be overruled lightly by those whose training and duties ill-equip them to deal intelligently with matters so vital to the physical security of the nation. At the same time, however, it is essential that there be definite limits to military discretion, especially where martial law has not been declared. Individuals must not be left impoverished of their constitutional rights on a plea of military necessity that has neither substance nor support. Thus, like other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled. 'What are the allowable limits of military discretion, and whether or not they have been overstepped in a particular case, are judicial questions.' Sterling v. Constantin, 287 U.S. 378, 401, 53 S.Ct. 190, 196, 77 L.Ed. 375. The judicial test of whether the Government, on a plea of military necessity, can validly deprive an individual of any of his constitutional rights is whether the deprivation is reasonably related to a public danger that is so 'immediate, imminent, and impending' as not to admit of delay and not to permit the intervention of ordinary constitutional processes to alleviate the danger. United States v. Russell, 13 Wall. 623, 627, 628, 20 L.Ed. 474; Mitchell v. Harmony, 13 How. 115, 134, 135, 14 L.Ed. 75; Raymond v. Thomas, 91 U.S. 712, 716, 23 L.Ed. 434. Civilian Exclusion Order No. 34, banishing from a prescribed area of the Pacific Coast 'all persons of Japanese ancestry, both alien and non-alien,' clearly does not meet that test. Being an obvious racial discrimination, the order deprives all those within its scope of the equal protection of the laws as guaranteed by the Fifth Amendment. It further deprives these individuals of their constitutional rights to live and work where they will, to establish a home where they choose and to move about freely. In excommunicating them without benefit of hearings, this order also deprives them of all their constitutional rights to procedural due process. Yet no reasonable relation to an 'immediate, imminent, and impending' public danger is evident to support this racial restriction which is one of the most sweeping and complete deprivations of constitutional rights in the history of this nation in the absence of martial law. It must be conceded that the military and naval situation in the spring of 1942 was such as to generate a very real fear of invasion of the Pacific Coast, accompanied by fears of sabotage and espionage in that area. The military command was therefore justified in adopting all reasonable means necessary to combat these dangers. In adjudging the military action taken in light of the then apparent dangers, we must not erect too high or too meticulous standards; it is necessary only that the action have some reasonable relation to the removal of the dangers of invasion, sabotage and espionage. But the exclusion, either temporarily or permanently, of all

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persons with Japanese blood in their veins has no such reasonable relation. And that relation is lacking because the exclusion order necessarily must rely for its reasonableness upon the assumption that all persons of Japanese ancestry may have a dangerous tendency to commit sabotage and espionage and to aid our Japanese enemy in other ways. It is difficult to believe that reason, logic or experience could be marshalled in support of such an assumption. That this forced exclusion was the result in good measure of this erroneous assumption of racial guilt rather than bona fide military necessity is evidenced by the Commanding General's Final Report on the evacuation from the Pacific Coast area.1 In it he refers to all individuals of Japanese descent as 'subversive,' as belonging to 'an enemy race' whose 'racial strains are undiluted,' and as constituting 'over 112,000 potential enemies * * * at large today' along the Pacific Coast.2 In support of this blanket condemnation of all persons of Japanese descent, however, no reliable evidence is cited to show that such individuals were generally disloyal,3 or had generally so conducted themselves in this area as to constitute a special menace to defense installations or war industries, or had otherwise by their behavior furnished reasonable ground for their exclusion as a group. Justification for the exclusion is sought, instead, mainly upon questionable racial and sociological grounds not ordinarily within the realm of expert military judgment, supplemented by certain semi-military conclusions drawn from an unwarranted use of circumstantial evidence. Individuals of Japanese ancestry are condemned because they are said to be 'a large, unassimilated, tightly knit racial group, bound to an enemy nation by strong ties of race, culture, custom and religion.'4 They are claimed to be given to 'emperor worshipping ceremonies'5 and to 'dual citizenship.'6 Japanese language schools and allegedly pro-Japanese organizations are cited as evidence of possible group disloyalty,7 together with facts as to certain persons being educated and residing at length in Japan.8 It is intimated that many of these individuals deliberately resided 'adjacent to strategic points,' thus enabling them 'to carry into execution a tremendous program of sabotage on a mass scale should any considerable number of them have been inclined to do so.' 9 The need for protective custody is also asserted. The report refers without identity to 'numerous incidents of violence' as well as to other admittedly unverified or cumulative incidents. From this, plus certain other events not shown to have been connected with the Japanese Americans, it is concluded that the 'situation was fraught with danger to the Japanese population itself' and that the general public 'was ready to take matters into its own hands.'10 Finally, it is intimated, though not directly charged or proved, that persons of Japanese ancestry were responsible for three minor isolated shellings and bombings of the Pacific Coast area,11 as well as for unidentified radio transmissions and night signalling. The main reasons relied upon by those responsible for the forced evacuation, therefore, do not prove a reasonable relation between the group characteristics of Japanese Americans and the dangers of invasion, sabotage and espionage. The reasons appear, instead, to be largely an accumulation of much of the misinformation, half-truths and insinuations that for years have been directed against Japanese Americans by people with racial and economic prejudices—the same people who have been among the foremost advocates of the evacuation.12 A military judgment based upon such racial and sociological considerations is not entitled to the great weight ordinarily given the judgments based upon strictly military considerations. Especially is this so when every charge relative to race, religion, culture, geographical location, and legal and economic status has been substantially discredited by independent studies made by experts in these matters.13 The military necessity which is essential to the validity of the evacuation order thus resolves itself into a few intimations that certain individuals actively aided the enemy, from which it is inferred that the entire group of Japanese Americans could not be trusted to be or remain loyal to the United States. No one denies, of course, that there were some disloyal persons of Japanese descent on the Pacific Coast who did all in their power to aid their ancestral land. Similar disloyal activities have been engaged in by many persons of German, Italian and even

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more pioneer stock in our country. But to infer that examples of individual disloyalty prove group disloyalty and justify discriminatory action against the entire group is to deny that under our system of law individual guilt is the sole basis for deprivation of rights. Moreover, this inference, which is at the very heart of the evacuation orders, has been used in support of the abhorrent and despicable treatment of minority groups by the dictatorial tyrannies which this nation is now pledged to destroy. To give constitutional sanction to that inference in this case, however well- intentioned may have been the military command on the Pacific Coast, is to adopt one of the cruelest of the rationales used by our enemies to destroy the dignity of the individual and to encourage and open the door to discriminatory actions against other minority groups in the passions of tomorrow. No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. See House Report No. 2124 (77th Cong., 2d Sess.) 247-52. It is asserted merely that the loyalties of this group 'were unknown and time was of the essence.'14 Yet nearly four months elapsed after Pearl Harbor before the first exclusion order was issued; nearly eight months went by until the last order was issued; and the last of these 'subversive' persons was not actually removed until almost eleven months had elapsed. Leisure and deliberation seem to have been more of the essence than speed. And the fact that conditions were not such as to warrant a declaration of martial law adds strength to the belief that the factors of time and military necessity were not as urgent as they have been represented to be. Moreover, there was no adequate proof that the Federal Bureau of Investigation and the military and naval intelligence services did not have the espionage and sabotage situation well in hand during this long period. Nor is there any denial of the fact that not one person of Japanese ancestry was accused or convicted of espionage or sabotage after Pearl Harbor while they were still free,15 a fact which is some evidence of the loyalty of the vast majority of these individuals and of the effectiveness of the established methods of combatting these evils. It seems incredible that under these circumstances it would have been impossible to hold loyalty hearings for the mere 112,000 persons involved—or at least for the 70,000 American citizens— especially when a large part of this number represented children and elderly men and women. 16 Any inconvenience that may have accompanied an attempt to conform to procedural due process cannot be said to justify violations of constitutional rights of individuals. I dissent, therefore, from this legalization of racism. Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States. All residents of this nation are kin in some way by blood or culture to a foreign land. Yet they are primarily and necessarily a part of the new and distinct civilization of the United States. They must accordingly be treated at all times as the heirs of the American experiment and as entitled to all the rights and freedoms guaranteed by the Constitution. Mr. Justice JACKSON, dissenting. Korematsu was born on our soil, of parents born in Japan. The Constitution makes him a citizen of the United States by nativity and a citizen of California by residence. No claim is made that he is not loyal to this country. There is no suggestion that apart from the matter involved here he is not law-abiding and well disposed. Korematsu, however, has been convicted of an act not commonly a crime. It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived. Even more unusual is the series of military orders which made this conduct a crime. They forbid such a one to remain, and they also forbid him to leave. They were so drawn that the only way Korematsu could avoid violation was to give himself up to the military authority.

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This meant submission to custody, examination, and transportation out of the territory, to be followed by indeterminate confinement in detention camps. A citizen's presence in the locality, however, was made a crime only if his parents were of Japanese birth. Had Korematsu been one of four-the others being, say, a German alien enemy, an Italian alien enemy, and a citizen of American-born ancestors, convicted of treason but out on parole—only Korematsu's presence would have violated the order. The difference between their innocence and his crime would result, not from anything he did, said, or thought, different than they, but only in that he was born of different racial stock. Now, if any fundamental assumption underlies our system, it is that guilt is personal and not inheritable. Even if all of one's antecedents had been convicted of treason, the Constitution forbids its penalties to be visited upon him, for it provides that 'no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attained.' Article 3, § 3, cl. 2. But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign. If Congress in peace-time legislation should enact such a criminal law, I should suppose this Court would refuse to enforce it. But the 'law' which this prisoner is convicted of disregarding is not found in an act of Congress, but in a military order. Neither the Act of Congress nor the Executive Order of the President, nor both together, would afford a basis for this conviction. It rests on the orders of General DeWitt. And it is said that if the military commander had reasonable military grounds for promulgating the orders, they are constitutional and become law, and the Court is required to enforce them. There are several reasons why I cannot subscribe to this doctrine. It would be impracticable and dangerous idealism to expect or insist that each specific military command in an area of probable operations will conform to conventional tests of constitutionality. When an area is so beset that it must be put under military control at all, the paramount consideration is that its measures be successful, rather than legal. The armed services must protect a society, not merely its Constitution. The very essence of the military job is to marshal physical force, to remove every obstacle to its effectiveness, to give it every strategic advantage. Defense measures will not, and often should not, be held within the limits that bind civil authority in peace. No court can require such a commander in such circumstances to act as a reasonable man; he may be unreasonably cautious and exacting. Perhaps he should be. But a commander in temporarily focusing the life of a community on defense is carrying out a military program; he is not making law in the sense the courts know the term. He issues orders, and they may have a certain authority as military commands, although they may be very bad as constitutional law. But if we cannot confine military expedients by the Constitution, neither would I distort the Constitution to approve all that the military may deem expedient. This is what the Court appears to be doing, whether consciously or not. I cannot say, from any evidence before me, that the orders of General DeWitt were not reasonably expedient military precautions, nor could I say that they were. But even if they were permissible military procedures, I deny that it follows that they are constitutional. If, as the Court holds, it does follow, then we may as well say that any military order will be constitutional and have done with it. The limitation under which courts always will labor in examining the necessity for a military order are illustrated by this case. How does the Court know that these orders have a reasonable basis in necessity? No evidence whatever on that subject has been taken by this or any other court. There is sharp controversy as to the credibility of the DeWitt report. So the Court, having no real evidence before it, has no choice but to accept General DeWitt's own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

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In the very nature of things military decisions are not susceptible of intelligent judicial appraisal. They do not pretend to rest on evidence, but are made on information that often would not be admissible and on assumptions that could not be proved. Information in support of an order could not be disclosed to courts without danger that it would reach the enemy. Neither can courts act on communications made in confidence. Hence courts can never have any real alternative to accepting the mere declaration of the authority that issued the order that it was reasonably necessary from a military viewpoint. Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a farm more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as 'the tendency of a principle to expand itself to the limit of its logic.'1 A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court's opinion in this case. It argues that we are bound to uphold the conviction of Korematsu because we upheld one in Kiyshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774, when we sustained these orders in so far as they applied a curfew requirement to a citizen of Japanese ancestry. I think we should learn something from that experience. In that case we were urged to consider only that curfew feature, that being all that technically was involved, because it was the only count necessary to sustain Hirabayashi's conviction and sentence. We yielded, and the Chief Justice guarded the opinion as carefully as language will do. He said: 'Our investigation here does not go beyond the inquiry whether, in the light of all the relevant circumstances preceding and attending their promulgation, the challenged orders and statute afforded a reasonable basis for the action taken in imposing the curfew.' 320 U.S. at page 101, 63 S.Ct. at page 1386, 87 L.Ed. 1774. 'We decide only the issue as we have defined it—we decide only that the curfew order as applied, and at the time it was applied, was within the boundaries of the war power.' 320 U.S. at page 102, 63 S.Ct. at page 1386, 87 L.Ed. 1774. And again: 'It is unnecessary to consider whether or to what extent such findings would support orders differing from the curfew order.' 320 U.S. at page 105, 63 S.Ct. at page 1387, 87 L.Ed. 1774. (Italics supplied.) However, in spite of our limiting words we did validate a discrimination of the basis of ancestry for mild and temporary deprivation of liberty. Now the principle of racial discrimination is pushed from support of mild measures to very harsh ones, and from temporary deprivations to indeterminate ones. And the precedent which it is said requires us to do so is Hirabayashi. The Court is now saying that in Hirabayashi we did decide the very things we there said we were not deciding. Because we said that these citizens could be made to stay in their homes during the hours of dark, it is said we must require them to leave home entirely; and if that, we are told they may also be taken into custody for deportation; and if that, it is argued they may also be held for some undetermined time in detention camps. How far the principle of this case would be extended before plausible reasons would play out, I do not know.

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I should hold that a civil court cannot be made to enforce an order which violates constitutional limitations even if it is a reasonable exercise of military authority. The courts can exercise only the judicial power, can apply only law, and must abide by the Constitution, or they cease to be civil courts and become instruments of military policy. Of course the existence of a military power resting on force, so vagrant, so centralized, so necessarily heedless of the individual, is an inherent threat to liberty. But I would not lead people to rely on this Court for a review that seems to me wholly delusive. The military reasonableness of these orders can only be determined by military superiors. If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history. My duties as a justice as I see them do not require me to make a military judgment as to whether General DeWitt's evacuation and detention program was a reasonable military necessity. I do not suggest that the courts should have attempted to interfere with the Army in carrying out its task. But I do not think they may be asked to execute a military expedient that has no place in law under the Constitution I would reverse the judgment and discharge the prisoner. 1 9 Cir., 140 F.2d 289. 2 Hearings before the Subcommittee on the National War Agencies Appropriation Bill for 1945, Part II, 608—726; Final Report, Japanese Evacuation from the West Coast, 1942, 309— 327; Hearings before the Committee on Immigration and Naturalization, House of Representatives, 78th Cong., 2d Sess., on H.R. 2701 and other bills to expatriate certain nationals of the United States, pp. 37—42, 49—58. 1 7 Fed.Reg. 1407. 2 7 Fed.Reg. 2320. 3 56 Stat. 173, 18 U.S.C.A. § 97a. 4 7 Fed.Reg. 2601. 5 The italics in the quotation are mine. The use of the word 'voluntarily' exhibits a grim irony probably not lost on petitioner and others in like case. Either so, or its use was a disingenuous attempt to camouflage the compulsion which was to be applied. 6 7 Fed.Reg. 3967. 7 Fed.Reg. 2165. 8 My agreement would depend on the definition and application of the terms 'temporary' and 'emergency'. No pronouncement of the commanding officer can, in my view, preclude judicial inquiry and determination whether an emergency ever existed and whether, if so, it remained, at the date of the restraint out of which the litigation arose. Cf. Chastleton Corporation v. Sinclair, 264 U.S. 543, 44 S.Ct. 405, 68 L.Ed. 841. 1 Final Report, Japanese Evacuation from the West Coast, 1942, by Lt. Gen. J. L. De Witt. This report is dated June 5, 1943, but was not made public until January, 1944. 2 Further evidence of the Commanding General's attitude toward individuals of Japanese ancestry is revealed in his voluntary testimony on April 13, 1943, in San Francisco before the House Naval Affairs Subcommittee to Investigate Congested Areas, Part 3, pp. 739—40 (78th Cong., 1st Sess.): I don't want any of them (persons of Japanese ancestry) here. They are a dangerous element. There is no way to determine their loyalty. The west coast contains too many vital installations essential to the defense of the country to allow any Japanese on this coast. * * *

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The danger of the Japanese was, and is now—if they are permitted to come back—espionage and sabotage. It makes no difference whether he is an American citizen, he is still a Japanese. American citizenship does not necessarily determine loyalty. * * * But we must worry about the Japanese all the time until he is wiped off the map. Sabotage and espionage will make problems as long as he is allowed in this area. * * *' 3 The Final Report, p. 9, casts a cloud of suspicion over the entire group by saying that 'while it was believed that some were loyal, it was known that many were not.' (Italics added.) 4 Final Report, p. vii; see also pp. 9, 17. To the extent that assimilation is a problem, it is largely the result of certain social customs and laws of the American general public. Studies demonstrate that persons of Japanese descent are readily susceptible to integration in our society if given the opportunity. Strong, The Second-Generation Japanese Problem (1934); Smith, Americans in Process (1937); Mears, Resident Orientals on the American Pacific Coast (1928); Millis, The Japanese Problem in the United States (1942). The failure to accomplish an ideal status of assimilation, therefore, cannot be charged to the refusal of these persons to become Americanized or to their loyalty to Japan. And the retention by some persons of certain customs and religious practices of their ancestors is no criterion of their loyalty to the United States. 5. Final Report, pp. 10—11. No sinister correlation between the emperor worshipping activities and disloyalty to America was shown. 6 Final Report, p. 22. The charge of 'dual citizenship' springs from a misunderstanding of the simple fact that Japan in the past used the doctrine of jus sanguinis, as she had a right to do under international law, and claimed as her citizens all persons born of Japanese nationals wherever located. Japan has greatly modified this doctrine, however, by allowing all Japanese born in the United States to renounce any claim of dual citizenship and by releasing her claim as to all born in the United States after 1925. See Freeman, 'Genesis, Exodus, and Leviticus; Genealogy, Evacuation, and Law,' 28 Cornell L.Q. 414, 447—8, and authorities there cited; McWilliams, Prejudice, 123—4 (1944). 7 Final Report, pp. 12. We have has various foreign language schools in this country for generations without considering their existence as ground for racial discrimination. No subversive activities or teachings have been shown in connection with the Japanese schools. McWilliams, Prejudice, 121—3 (1944). 8 Final Report, pp. 13. Such persons constitute a very small part of the entire group and most of them belong to the Kibei movement—the actions and membership of which are well known to our Government agents. 9 Final Report, p. 10 see also pp. vii, 9, 15—17. This insinuation, based purely upon speculation and circumstantial evidence, completely overlooks the fact that the main geographic pattern of Japanese population was fixed many years ago with reference to economic, social and soil conditions. Limited occupational outlets and social pressures encouraged their concentration near their initial points of entry on the Pacific Coast. That these points may now be near certain strategic military and industrial areas is no proof of a diabolical purpose on the part of Japanese Americans. See McWilliams, Prejudice, 119 121 (1944); House Report No. 2124 (77th Cong., 2d Sess.), 59—93. 10 Final Report, pp. 8. This dangerous doctrine of protective custody, as proved by recent European history, should have absolutely no standing as an excuse for the deprivation of the rights of minority groups. See House Report No. 1911 (77th Cong., 2d Sess.) 1—2. Cf. House Report No. 2124 (77th Cong., 2d Sess.) 145—7. In this instance, moreover, there are only two minor instances of violence on record involving persons of Japanese ancestry. McWilliams, What About Our Japanese-Americans? Public Affairs Pamphlets, No. 91, p. 8 (1944).

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11 Final Report, p. 18. One of these incidents (the reputed dropping of incendiary bombs on an Oregon forest) occurred on Sept. 9, 1942—a considerable time after the Japanese American had been evacuated from their home and placed in Assembly Centers. See New York Times, Sept. 15, 1942, p. 1, col. 3. 12 Special interest groups were extremely active in applying pressure for mass evacuation. See House Report No. 2124 (77th Cong., 2d Sess.) 154—6; McWilliams, Prejudice, 126—8 (1944). Mr. Austin E. Anson, managing secretary of the Salinas Vegetable Grower- Shipper Association, has frankly admitted that 'We're charged with wanting to get rid of the Japs for selfish reasons. We do. It's a question of whether the white man lives on the Pacific Coast or the brown men. They came into this valley to work, and they stayed to take over. * * * They undersell the white man in the markets. * * * They work their women and children while the white farmer has to pay wages for his help,. If all the Japs were removed tomorrow, we'd never miss them in two weeks, because the white farmers can take over and produce everything the Jap grows. And we don't want them back when the war ends, either.' Quoted by Taylor in his article 'The People Nobody Wants,' 214 Sat. Eve. Post 24, 66 (May 9, 1942). 13 See notes 4—12, supra. 14 Final Report, p. vii; see also p. 18. 15 The Final Report, p. 34, makes the amazing statement that as of February 14, 1942, 'The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.' Apparently, in the minds of the military leaders, there was no way that the Japanese Americans could escape the suspicion of sabotage. 16 During a period of six months, the 112 alien tribunals or hearing boards set up by the British Government shortly after the outbreak of the present war summoned and examined approximately 74,000 German and Austrian aliens. These tribunals determined whether each individual enemy alien was a real enemy of the Allies or only a 'friendly enemy.' About 64,000 were freed from internment and from any special restrictions, and only 2,000 were interned. Kempner, 'The Enemy Alien Problem in the Present War,' 34 Amer. Journ. of Int. Law 443, 444—46; House Report No. 2124 (77th Cong., 2d Sess.), 280—1. 1 Nature of the Judicial Process, p. 51.

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23rd Annual Litigation Institute and Retreat 5–41 Chapter 5—Yasui v. United States: From 1941 to Today—Making the Case for the Constitution

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828 F.2d 591 Gordon K. HIRABAYASHI, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. Gordon K. HIRABAYASHI, Petitioner-Appellee, v. UNITED STATES of America, Respondent-Appellant. Nos. 86-3853, 86-3887. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 2, 1987. Decided Sept. 24, 1987. Rodney L. Kawakami, Kathryn Bannai, Arthur G. Barnett, Jeffrey A. Beaver, Camden M. Hall, Daniel J. Ichinaga, Gary D. Iwamoto, Craig T. Kobayashi, Michael Leong, Nina L. Mar, Karen Narasaki, Sharon A. Sakamoto, Roger H. Shimizu, Benson D. Wong, Seattle, Wash., for petitioner/appellant/cross-appellee. Victor D. Stone, Washington, D.C., for respondent/appellee/cross-appellant. Appeal from the United States District Court for the Western District of Washington. Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges. SCHROEDER, Circuit Judge: I. INTRODUCTION Gordon Hirabayashi is an American citizen who was born in Seattle, Washington, in 1918, and is currently Professor Emeritus of Sociology at the University of Alberta. He is of Japanese ancestry. In 1942 he was living in Seattle and was therefore subject to wartime orders requiring all persons of Japanese ancestry, whether citizens or not, to remain within their residences between 8:00 p.m. and 6:00 a.m. He was also subject to subsequent orders to report to a Civilian Control Station for processing requisite to exclusion from the military area. Hirabayashi refused to honor the curfew or to report to the control station because he believed that the military orders were based upon racial prejudice and violated the protection the Constitution affords to all citizens. The Supreme Court reviewed his conviction for violating the curfew order and unanimously affirmed. In an opinion by Chief Justice Stone, the Court accepted the government’s position that the curfew was justified by military assessments of emergency conditions existing at the time. Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943). Because Hirabayashi had received a concurrent sentence for violating the exclusion order, the Court affirmed that conviction as well. Id. at 105, 63 S.Ct. at 1387. The following year, a majority of what was by then a sharply divided Court applied the same military emergency rationale to uphold explicitly the exclusion of all citizens of Japanese ancestry from the West Coast. Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944). The Hirabayashi and Korematsu decisions have never occupied an honored place in our history. In the ensuing four and a half decades, journalists and researchers have stocked library shelves with studies of the cases and surrounding events. These materials document historical judgments that the convictions were unjust. They demonstrate that there could have been no reasonable military assessment of an emergency at the time, 1 that the orders were based upon racial stereotypes, 2 and that the orders caused needless suffering and shame for thousands of

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American citizens. 3 The legal judgments of the courts reflecting that Hirabayashi and Korematsu had been properly convicted of violating the laws of the United States, however, remained on their records. Petitioner filed this lawsuit in 1983 to obtain a writ of error coram nobis to vacate his convictions and thus to make the judgments of the courts conform to the judgments of history. The event which triggered the lawsuit occurred in 1982, when an archival researcher discovered the sole remaining copy of the original report prepared by the general who issued the curfew and exclusion orders. This report was intended to explain the basis for those orders. War Department officials revised the report in several material respects and tried to destroy all of the original copies before issuing the final report. The Justice Department did not know of the existence of the original report at the time its attorneys were preparing briefs in the Hirabayashi and Korematsu cases. In his coram nobis petition Hirabayashi contended that the original report, the circumstances surrounding its alteration, and recently discovered related documents provided the proof, unavailable at the time of his conviction, that the curfew and exclusion orders were in fact based upon racial prejudice rather than military exigency. Hirabayashi further alleged that the government concealed these matters from his counsel and the Supreme Court, and that had the Supreme Court known the true basis for the orders, the ultimate decision in the case would probably have been different. The district court held a full evidentiary proceeding on Hirabayashi’s claims. It reviewed hundreds of documents and heard the testimony of several witnesses. They included Edward Ennis, who had been the Director of the Alien Enemy Control Unit at the Department of Justice and a principal author of the government’s briefs in both the Hirabayashi and Korematsu cases; William Hammond, who had been the Assistant Chief of Staff for the entire Western Defense Command; Aiko Herzig-Yoshinaga, a researcher for the Commission on Wartime Relocation and Internment of Civilians from 1981 to 1983 and the person who discovered the original version of the final report. In a careful opinion containing detailed findings of fact, the district court confirmed Hirabayashi’s contentions in virtually every factual respect. See Hirabayashi v. United States, 627 F.Supp. 1445 (W.D.Wash.1986). It rejected as factually and legally unsupported the government’s arguments that Hirabayashi had not been prejudiced by the concealment of the newly discovered material, that Hirabayashi could and should have made the same claims years earlier, and that there was no remaining case or controversy because Hirabayashi suffered no continuing adverse consequences from the original convictions. The district court held that Hirabayashi’s conviction for violating the exclusion order resulted in a violation of due process and ordered it vacated. 627 F.Supp. at 1457. Another district court has reached the same result in the Korematsu case, Korematsu v. United States, 584 F.Supp. 1406 (N.D.Cal.1984), and there has been no appeal. 4 The district court in this case, however, concluded as a matter of law that the curfew conviction should not be vacated. It ruled that because the curfew order less significantly infringed Hirabayashi’s freedom, the Supreme Court would have distinguished it from the exclusion order and would have affirmed the conviction even if it had known the racial basis of the order. Hirabayashi, 627 F.Supp. at 1457. Both Hirabayashi and the government appeal. In reviewing the district court’s decision, we must uphold the findings of fact unless they are clearly erroneous, and review the legal issues de novo. United States v. McConney, 728 F.2d 1195, 1200 n. 5 & 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). We agree with the district court’s factual and legal analysis leading to its vacation of the exclusion conviction. We

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disagree with the court’s conclusion that the curfew conviction rests upon a legal foundation different from the exclusion conviction. We therefore hold that both convictions should be vacated. II. FACTUAL BACKGROUND This proceeding is a collateral attack upon convictions for violating military orders promulgated in 1942. The facts underlying this litigation thus form a very small part of the great mosaic of American participation in World War II. In order to resolve the contentions of both parties on appeal, we must first understand the nature and origin of the crimes of which the petitioner was convicted; the posture of the case as it was presented to the United States Supreme Court; the material which the government suppressed from the Court; and the relevance of that material to the Supreme Court’s analysis. A. The Military Exclusion Orders and Hirabayashi’s Conviction. On December 7, 1941, President Roosevelt issued Presidential Proclamation No. 2525, reprinted in H.R.Rep. No. 2124, 77th Cong., 2d Sess. (1942); R. Daniels, supra note 1, at 61, delegating broad authority to the Attorney General and the Secretary of War to promulgate and enforce regulations aimed at curtailing the liberties of enemy aliens following the declaration of war against Japan, Italy, and Germany. A subject of immediate governmental internal debate was whether or not our Constitution permitted similar action with respect to citizens, and specifically, whether or not the evacuation of citizens of Japanese ancestry from the West Coast was appropriate. The Justice Department consistently took the view that civilian authorities could not authorize the exclusion of citizens and that the matter should be left to military judgment. 5 Consistent with that view, President Roosevelt signed Executive Order No. 9066 on February 19, 1942. It authorized the Secretary of War or his designees to prescribe military areas from which any or all persons, citizens as well as aliens, might be excluded. Exec. Order No. 9066, 3 C.F.R. 1092 (1938-1943 Comp.). The next day, Secretary of War Stimson delegated his authority under the Executive Order to Lt. Gen. John L. DeWitt, the Commanding General of the Western Defense Command. On March 2, 1942, General DeWitt issued Public Proclamation No. 1, designating “Military Areas” within the western states. 7 Fed.Reg. 2320 (1942). On March 21, President Roosevelt signed legislation making it a misdemeanor to disregard restrictions imposed by a military commander. Pub.L. No. 77-503, 56 Stat. 173 (1942). Based upon the authority of the Executive Order and the criminal statute, General DeWitt began issuing orders requiring certain persons to obey curfew restrictions and report at designated times and places for evacuation from military areas. Two of these orders provided the basis for Hirabayashi’s convictions. In Public Proclamation No. 3, dated March 24, 1942, General DeWitt proclaimed “as a matter of military necessity” that all German and Italian aliens and all persons of Japanese ancestry, whether aliens or American citizens, within established military zones would be required beginning March 28, 1942, to remain within their place of residence between 8 p.m. and 6 a.m. 7 Fed.Reg. 2543. That same day, General DeWitt began issuing a series of Civilian Exclusion Orders, each relating to a specified area within the territory of his command. Order No. 57, pertaining to Seattle, issued May 10, 1942, required the petitioner to report either May 11 or May 12 to a designated civilian control station as a prerequisite to exclusion from the military area on May 16. 7 Fed.Reg. 3725. Hirabayashi went instead to the FBI where he volunteered that he had not abided by the curfew restrictions and that he, as a matter of

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conscience, would not register with the civilian control station. Hirabayashi’s actual loyalty to this country has apparently never been questioned before, during or since World War II. 6 A grand jury indicted petitioner on May 28, 1942. Count I charged that he had failed to report pursuant to Civilian Exclusion Order 57. Count II charged the curfew violation. He was tried by a jury in October 1942, found guilty, and sentenced to three months on each count to be served concurrently. 7 On appeal, this court certified issues to the Supreme Court, and the Supreme Court on April 5, 1943, certified the entire record to it. Hirabayashi, 320 U.S. at 84-85, 63 S.Ct. at 1378. B. The Supreme Court Proceedings. Briefing to the Supreme Court took place in the spring of 1943. In his brief, Hirabayashi argued that there was no emergency justifying a racially based classification and that the orders had been issued upon invidious racial prejudice. For example, Hirabayashi’s brief stated: Whatever may have been the panicky notion about a Japanese invasion of the West Coast right after Pearl Harbor, it was quite evident by the time the orders here in question were promulgated that the Japanese were not easily going to be able to do this. They had not invaded Australia; had not even attacked Hawaii a second time. [footnote omitted] The picture of Japanese paratroops hiding among the Japanese residents of the West Coast to assist at an invasion is pure fantasy. The truth of the matter is that there was no military necessity, nor even reasonable ground for belief that such necessity required either general curfew regulations or wholesale evacuation orders. Brief for Appellant at 19, Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943) (No. 870). The Justice Department justified the exclusion and curfew orders upon what it said was a reasonable judgment of military necessity. It argued that because of cultural characteristics of the Japanese Americans, including religion and education, it was likely that some, though not all, American citizens of Japanese ancestry were disloyal. Brief for United States at 18-32. It then argued that because of the military exigencies, the government did not wait to segregate the loyal from the disloyal. The government’s brief stated: The classification was not based upon invidious race discrimination. Rather, it was founded upon the fact that the group as a whole contained an unknown number of persons who could not readily be singled out and who were a threat to the security of the nation; and in order to impose effective restraints upon them it was necessary not only to deal with the entire group, but to deal with it at once. Id. at 35. Later in its brief, the government stated that “[w]hat was needed was a method of removing at once the unknown number of Japanese persons who might assist a Japanese invasion, and not a program for sifting out such persons in the indefinite future.” Id. at 62. The government claimed that the “operative fact” on which the classification was made was the danger arising from the existence of over 100,000 persons of Japanese descent on the West Coast. Id. at 63. It acknowledged, however, that the “record in this case does not contain any comprehensive account of the facts which gave rise to the exclusion and curfew measures here involved.” Id. at 10-11. The government therefore made extensive use of judicial notice in order to convey its position that those responsible for the orders reasonably regarded an emergency situation to exist. It argued that “historical facts” and “facts appear[ing] in official documents ... are peculiarly within the realm of judicial notice.” Id. at 11.

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The government’s argument that the urgency of the situation made individual hearings to determine loyalty impossible was the subject of special concern. Solicitor General Charles Fahy filed a post-argument memorandum stressing that the hearings could not have been utilized because the “situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings.” (emphasis added). 8 The Supreme Court decided the case on June 21, 1943. The government’s view prevailed; Chief Justice Stone deferred to the military assessment of necessity. The Court saw the racial classification as justifiable only as a matter of military expediency, and indicated that it had to accept the judgment of the military authorities that the exigencies of time required the entire Japanese population to be treated as a group. The Court concluded: Whatever views we may entertain regarding the loyalty to this country of the citizens of Japanese ancestry, we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the warmaking branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with.... 320 U.S. at 99, 63 S.Ct. at 1385. The problem for the Court was stated with greater anguish in Justice Douglas’ concurring opinion where he pointed out that “guilt is personal under our constitutional system. Detention for reasonable cause is one thing. Detention on account of ancestry is another.” 320 U.S. at 107-08, 63 S.Ct. at 1389 (Douglas, J., concurring). He nevertheless rejected Hirabayashi’s argument, concluding that expediency so required. Much of the argument assumes that as a matter of policy it might have been wiser for the military to have dealt with these people on an individual basis and through the process of investigation and hearings separated those who were loyal from those who are not. But the wisdom or expediency of the decision which was made is not for us to review.... [W]here the peril is great and the time is short, temporary treatment on a group basis may be the only practicable expedient whatever the ultimate percentage of those who are detained for cause. Id. at 106-07, 63 S.Ct. at 1388 (Douglas, J., concurring). C. The Coram Nobis Proceedings: General DeWitt’s Report and Other Matters Developed in the Record Below. Hirabayashi filed this coram nobis proceeding early in 1983, alleging that new material had come to light in this decade which showed that the Department of War had suppressed evidence from both Hirabayashi and the Justice Department during the crucial period when the case was being presented to the Supreme Court, and that this material required the court to grant the unusual writ of coram nobis to vacate the convictions. The government, recognizing that the circumstances surrounding Hirabayashi’s convictions may have been unjust, 9 nevertheless asked the district court to refrain from considering the facts, and to dismiss the petition for coram nobis. It asked the court instead to utilize the provisions of Fed.R.Crim.P. 48, permitting termination of a prosecution by dismissal of the indictment, to vacate the conviction. The district court denied the government’s motion to dismiss and held a full evidentiary hearing on Hirabayashi’s claims. The principal factual matter developed at the trial concerned the suppressed report of General DeWitt. This report set forth the basis for his promulgation of the orders of which Hirabayashi stood convicted. At the time General DeWitt issued his series of orders regarding

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curfew and exclusion in 1942, neither he nor the War Department provided any factual explanation of the reasons for the orders. After they were issued, General DeWitt prepared such a report. The official version of the report, Final Report: Japanese Evacuation from the West Coast 1942, was dated June 5, 1943, but was not made public until January 1944. Recent historical research, however, has uncovered in the National Archives a previously unknown copy of an original version of that report. That copy reflects that General DeWitt transmitted his original report to the War Department in Washington on April 15, 1943. See Hirabayashi, 627 F.Supp. at 1449, 1455-56 (describing circumstances surrounding discovery and transmittal). The original version differed materially from the official version. Most significantly, the original report did not purport to rest on any military exigency, but instead declared that because of traits peculiar to citizens of Japanese ancestry it would be impossible to separate the loyal from the disloyal, and that all would have to be evacuated for the duration of the war. Other documents in the record below show that officials in the War Department were alarmed when they received the original report. The district court observed that Assistant Secretary of War John J. McCloy was “more than a little exercised because the Final Report had been printed in final form and distributed without any prior consultation by the Western Defense Command with the War Department about its contents.” 627 F.Supp. at 1450. McCloy and Colonel Karl Bendetsen, who was in charge of the Wartime Civil Control Administration of the Western Defense Command, had a number of communications with General DeWitt in order to persuade him to change the report. Id. at 1450-53. At first intransigent, DeWitt stated “[I] [h]ave no desire to compromise in any way govt case in Supreme Court.” 627 F.Supp. at 1451 (quoting Letter of May 5, 1943, from General DeWitt to Brigadier General Barnett). He eventually capitulated. The result was that the report was changed in several substantive respects after the War Department suggested some fifty-five alterations. The changes most relevant to this case were summarized by the district court as follows: Page iii, paragraph 2, second sentence: Eliminate the words “and will continue for the duration of the present war.” Page iii, paragraph 2, end of the second sentence: Insert “The surprise attack at Pearl Harbor by the enemy crippled a major portion of the Pacific Fleet and exposed the West Coast to an attack which could not have been substantially impeded by defensive fleet operations. More than 120,000 persons of Japanese ancestry resided in colonies adjacent to many highly sensitive installations. Their loyalties were unknown, and time was of the essence.” Page 9. Strike the following: “It was impossible to establish the identity of the loyal and the disloyal with any degree of safety. It was not that there was insufficient time in which to make such a determination; it was simply a matter of facing the realities that a positive determination could not be made, that an exact separation of the ‘sheep from the goats’ was unfeasible.” And replace with the following: “To complicate the situation, no ready means existed for determining the loyal and the disloyal with any degree of safety. It was necessary to face the realities--a positive determination could not have been made.” 627 F.Supp. at 1451-52. The revised, official version of the report was dated June 5, 1943. The War Department tried to destroy all copies of the original report when the revised version was prepared. This record contains a memo by Theodore Smith of the Civil Affairs Division of the Western Defense

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Command, dated June 29, 1943, certifying that he witnessed the burning of “the galley proofs, galley pages, drafts and memorandums of the original report of the Japanese Evacuation.” Edward Ennis, the Director of the Alien Enemy Control Unit of the Justice Department and a principal author of the government’s 1942 brief, testified extensively in these proceedings. He testified as to his efforts in 1943 and 1944 in briefing both the Korematsu and Hirabayashi cases, and other efforts on the part of the Justice Department to obtain the full materials from the War Department supporting General DeWitt’s decisions. While preparing the government’s brief in Hirabayashi, Ennis learned that a report had been written but when he asked for a copy, the War Department gave him only a few selected pages. The district court observed, in denying the Government’s Petition for Rehearing in this case, that it found Ennis entirely credible and that it believed that had Ennis had the original report showing the true rationale of DeWitt, he would have informed the Supreme Court of its contents. On the basis of the evidence before it, the district court entered an extensive opinion setting forth the reasons for its decision to vacate the exclusion conviction. Judge Voorhees based that decision upon the factual record developed before him. He found first, that while the Supreme Court based its decision in Hirabayashi upon deference to military judgment of the need for expediency, General DeWitt, the person responsible for the racially based confinement of American citizens, had made no such judgment. The district court further found that the United States government doctored the documentary record to reflect that DeWitt had made a judgment of military exigency. Finally, the court found that had the suppressed material been submitted to the Supreme Court, its decision probably would have been materially affected. The government appeals the grant of relief. The district court refused, however, to grant coram nobis relief with respect to the curfew conviction. It based that decision upon its conclusion that the Supreme Court would have drawn a legal distinction between the curfew and exclusion orders. It is from that denial of relief that Hirabayashi appeals. We consider first the contentions of the government. III. THE GOVERNMENT’S CONTENTIONS IN ITS APPEAL The government’s contentions in its appeal from the district court’s decision to vacate the exclusion conviction can be classified in four general categories. They are, first, that certain factual determinations of the district court are clearly erroneous; second, that the claims are barred by laches; third, that the case is moot because Hirabayashi does not continue to suffer from any adverse consequences from the convictions; and, finally, that the district court abused its discretion in reaching the merits of the petition by not granting the government’s motion to vacate the convictions pursuant to Fed.R.Crim.P. 48. A. Factual Challenges. We turn to the government’s challenge to certain of the district court’s factual findings. The government first takes issue with the district court’s finding that it was General DeWitt who made the decision that exclusion of all persons of Japanese ancestry from the West Coast was required by military necessity. 627 F.Supp. at 1456. Support for the finding that the decision was General DeWitt’s is abundant in this record. Secretary of War Stimson delegated his authority to General DeWitt pursuant to the power delegated to Stimson by the President. See Public Proclamation No. 1, 7 Fed.Reg. 2320 (1942). There has been no showing that General DeWitt even consulted with War Department officials in Washington before issuing the orders Hirabayashi refused to obey. It is now clear that DeWitt did not consult with Washington before preparing his final report. Hirabayashi, 627 F.Supp. at 1450. As one commentator wrote soon after the orders were issued: “The Japanese question had political and economic angles, but the President’s Executive Order of February 19 treated it as fundamentally a military problem

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and placed responsibility squarely upon the Commanding General.” Fairman, The Law of Martial Rule and the National Emergency, 55 Harv.L.Rev. 1253, 1299 (1942). The government points to uncontroverted evidence in the record that there were those in the War Department who did not agree with the reasons given by General DeWitt for the order and would have justified the order on other grounds. This evidence, however, merely underscores the critical nature of General DeWitt’s decision and his report. It was because General DeWitt had exercised the authority, and because his judgment was essential, that the War Department suppressed the original version of his report in the first place. Indeed, Solicitor General Fahy in his oral argument in 1944 in Korematsu conceded that it was the views of the Commanding General which counted, and that if his orders had been based upon racist precepts, they would have been invalid. The following colloquy took place in which Justice Frankfurter and the Solicitor General discussed the revised version of DeWitt’s report without knowledge of the existence of the original version. MR. JUSTICE FRANKFURTER: Suppose the commanding general, when he issued Order No. 34, had said, in effect, “It is my judgment that, as a matter of security, there is no danger from the Japanese operations; but under cover of war, I had authority to take advantage of my hostility and clear the Japanese from this area.” Suppose he had said that, with that kind of crude candor. It would not have been within his authority, would it? MR. FAHY: It would not have been. MR. JUSTICE FRANKFURTER: As I understand the suggestion, it is that, as a matter of law, the report of General DeWitt two years later proved that that was exactly what the situation was. As I understand, that is the legal significance of the argument. MR. FAHY: That is correct, Your Honor; and the report simply does nothing of the kind. To support its position the government cites language in the Supreme Court’s opinion in Hirabayashi, referring to the judgment of Congress and military authorities, in order to suggest that somehow the Supreme Court made a factual finding contrary to the district court’s finding. Hirabayashi, 320 U.S. at 99, 63 S.Ct. at 1385. Neither the Supreme Court’s opinion nor the record before it in 1943 supports such an argument. The district court’s decision correctly reflects the historical record that the orders were the direct result of General DeWitt’s exercise of the authority delegated to him. The district court’s finding that it was General DeWitt who decided that the curfew and exclusion orders were required is not clearly erroneous. The government next challenges as factually erroneous the district court’s finding that the Supreme Court in 1943 would probably have reached a different result in the exclusion case if it had known the true basis for the General’s decision. The government disagrees with the following portions of the district court’s opinion: Had the statement of General DeWitt been disclosed to petitioner’s counsel, they would have been in a position to argue that, contrary to General DeWitt’s belief, there were in fact means of separating those who were loyal from those who were not; that the legal system had developed through the years means whereby factual questions of the most complex nature could be answered with a high degree of reliability. Counsel for petitioner could have pointed out that with very little effort the determination could have been made that tens of thousands of native-born Japanese Americans--infants in arms, children of high

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school age or younger, housewives, the infirm and elderly--were loyal and posed no possible threat to this country. * * * * * * Had counsel for petitioner known and been able to present to the Supreme Court the [initial] reason stated by General DeWitt for the evacuation of all Japanese, [and] ... [i]f the military necessity for exclusion was the impossibility of separating the loyal from the disloyal, the Supreme Court would not have had to defer to military judgment because this particular problem, separating the loyal from the disloyal, was one calling for judicial, rather than military, judgment. 627 F.Supp. at 1456-57. The government characterizes its challenge as one to a factual finding, which we must uphold unless clearly erroneous. To the extent, however, that the government is asking us to assess the district court’s judgment as to the legal materiality of the suppressed evidence, it is also raising a question of law, and we review with greater latitude. See McConney, 728 F.2d at 1204 (adopting functional analysis for mixed questions of law and fact). In making this challenge, the government agrees with petitioner and the district court that the Supreme Court in Hirabayashi deferred to a military judgment that circumstances required the prompt evacuation of all Japanese Americans, and that there was not enough time to attempt to separate the loyal from the disloyal. The government also agrees with petitioner and the district court that General DeWitt acted on the basis of his own racist views and not on the basis of any military judgment that time was of the essence. What the government contends in this appeal is that on the basis of the record before it, the Supreme Court should have known both that General DeWitt was a racist, and that he made no military judgment of emergency. The government asks us to hold, therefore, that the Supreme Court probably would have reached the same erroneous result even if the government had not suppressed the evidence and had accurately represented to the Court the basis of General DeWitt’s decision. There are several problems with this position. First, as the district court observed when it denied rehearing, the material in the record before the Supreme Court showing General DeWitt’s racism was limited primarily to a newspaper clipping. More importantly, it was principally Hirabayashi and those amici who supported him, not the government, who presented the evidence of racial bias to the Court and who argued that the decisions must have been based upon racism rather than military necessity. By contrast, the information now in the public record constitutes objective and irrefutable proof of the racial bias that was the cornerstone of the internment orders. The basis for General DeWitt’s decision was a very crucial issue which divided the government and Hirabayashi. For illustration, Hirabayashi’s brief referred to testimony by DeWitt indicating that “prejudice dominated his thinking,” and quoted him as stating: “It makes no difference whether the Japanese is theoretically a citizen ... A Jap is a Jap.” San Francisco News, April 13, 1943, at 1, cited in Reply Brief for Appellant at 1 n. 2. Extracts from the newspaper article were reproduced in the appendix to that brief. The Amicus Brief of the American Civil Liberties Union, in support of Hirabayashi’s position, also suggested that the order was based upon the racist view that it was impossible to segregate the loyal from the disloyal: There were those, of course, who claimed that it would have been impossible to tell the loyal from the disloyal; who said that all persons of Japanese ancestry look alike. It is a challenge to the intelligence of this nation that such childish opinions actually carried the day.

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Brief for American Civil Liberties Union at 13. Similar arguments were made by the Japanese American Citizens League in their Amicus Brief in support of Hirabayashi. The government, on the other hand, through the device of judicial notice asked the Supreme Court to recognize that the judgment made was one of exigency; the “principal danger to be apprehended was a Japanese invasion.” Brief for United States at 65. It argued that the “situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings.” Post-Argument Memorandum of Solicitor General Fahy. In deciding the case against Hirabayashi, the Supreme Court obviously accepted the government’s view of the facts as the government presented them in 1943, and rejected Hirabayashi’s. In asking us to hold that the Supreme Court would have reached the same result even if the Solicitor General had advised Hirabayashi and the Court of the true basis for General DeWitt’s orders, the government ignores the fact that in 1943 it was clearly in a better position to know that basis than was the defense. It also ignores the traditionally special relationship between the Supreme Court and the Solicitor General which permits the Solicitor General to make broad use of judicial notice and commands special credence from the Court. 10 The record here shows that Ennis, in preparing the government’s brief, felt that responsibility keenly. 11 The importance which the Supreme Court attached to the statements of the government regarding the factual situation at the time was brought out during the course of the proceedings in Korematsu, decided a year after Hirabayashi. By the time Korematsu was briefed and argued, the revised version of DeWitt’s report had been made public. Justice Department attorneys with access to contemporaneous intelligence reports had had misgivings about the accuracy of even that version. This apprehension was reflected in a footnote to the government’s brief in Korematsu limiting reliance on the report. 12 The footnote came up during oral argument, the transcript of which is in this record. Solicitor General Fahy denied that the footnote was a repudiation of the military necessity of the evacuation and reaffirmed the government’s position in Hirabayashi. 13 The Court’s divided opinions in Korematsu demonstrate beyond question the importance which the Justices in Korematsu and Hirabayashi placed upon the position of the government that there was a perceived military necessity, despite contrary arguments of the defendants in those cases. The majority in Korematsu reaffirmed the Court’s deference in Hirabayashi to military judgments. Justice Murphy’s dissent highlighted the difference between his position and the majority’s. He expressly faulted the majority’s acceptance of the government’s justification that “time is of the essence.” We now know this very phrase was inserted by the War Department into DeWitt’s final report and was not a concept upon which DeWitt himself based his decision. Justice Murphy said: No adequate reason is given for the failure to treat these Japanese Americans on an individual basis by holding investigations and hearings to separate the loyal from the disloyal, as was done in the case of persons of German and Italian ancestry. [citation omitted] It is asserted merely that the loyalties of this group “were unknown and time was of the essence.” Korematsu, 323 U.S. at 241, 65 S.Ct. at 205 (Murphy, J., dissenting) (emphasis added). Justice Jackson’s dissent zeroed in on the majority’s acceptance of General DeWitt’s revised report. He stated: So the Court, having no real evidence before it, has no choice but to accept General DeWitt’s own unsworn, self-serving statement, untested by any cross-examination, that what he did was reasonable. And thus it will always be when courts try to look into the reasonableness of a military order.

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Id. at 245, 65 S.Ct. at 207 (Jackson, J., dissenting). The majority decision in Korematsu was a reaffirmation that it would defer to a military judgment of necessity in upholding first the curfew and then the exclusion orders. Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. Id. at 218-19, 65 S.Ct. at 195. The claimed emergency preventing the separation of loyal from disloyal Japanese Americans was critical to the Supreme Court’s decisions upholding the internment of Hirabayashi and Korematsu. This was clearly evidenced when the Court subsequently held that detention of a concededly loyal Japanese American citizen was unlawful. See Ex Parte Endo, 323 U.S. 283, 65 S.Ct. 208, 89 L.Ed. 243 (1944). We cannot hold that the district court erred in deciding that the reasoning of the Supreme Court would probably have been profoundly and materially affected if the Justice Department had advised it of the suppression of evidence which established the truthfulness of the allegations made by Hirabayashi and Korematsu concerning the real reason for the exclusion order. B. Coram Nobis Requirements: the Issues of Laches and Mootness. Hirabayashi has filed a petition for a writ of error coram nobis asking the court to vacate his 1942 misdemeanor convictions. In United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954), the Supreme Court held that coram nobis relief is available to challenge the validity of a conviction, even though the sentence has been fully served, id. at 503-04, 74 S.Ct. at 248-49, “under circumstances compelling such action to achieve justice.” Id. at 511, 74 S.Ct. at 252. As we recently explained in Yasui v. United States, 772 F.2d 1496, 1498 (9th Cir.1985), the coram nobis writ “fills a void in the availability of post-conviction remedies in federal criminal cases.” A convicted defendant who is in federal custody and claims that his sentence “was imposed in violation of the Constitution or laws of the United States ... or is otherwise subject to collateral attack” may move to have his sentence vacated under 28 U.S.C. § 2255. Such habeas corpus relief is not available, however, to a defendant who has served his sentence and has been released from custody. In such a situation, “no statutory avenue to relief [exists] from the lingering collateral consequences of an unconstitutional or unlawful conviction based on errors of fact.” Yasui, 772 F.2d at 1498. See Morgan, 346 U.S. at 512-13, 74 S.Ct. at 253 (noting potential collateral consequences; “[s]ubsequent convictions may carry heavier penalties, civil rights may be affected”). Nor is a motion for a new trial based on newly discovered evidence available to petitioners who have long since served their sentences because such a motion must be filed within two years of the date of the final judgment in the original proceeding. See Fed.R.Crim.P. 33; United States v. Dellinger, 657 F.2d 140, 144 (7th Cir.1981). Thus, the coram nobis writ allows a court to vacate its judgments “for errors of fact ... in those cases where the errors [are] of the most fundamental character, that is, such as rendered the proceeding itself invalid.” United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19-20, 59 L.Ed. 129 (1914). Although Federal Rule of Civil Procedure 60(b) expressly abolishes the writ of coram nobis in civil cases, the extraordinary writ still provides a remedy in criminal proceedings where no other relief is available and sound reasons exist for failure to seek appropriate earlier

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relief. Morgan, 346 U.S. at 505 n. 4, 74 S.Ct. at 249 n. 4. See also James v. United States, 459 U.S. 1044, 103 S.Ct. 465, 74 L.Ed.2d 615 (1982) (opinion of Justice Brennan supporting denial of petition for writ of certiorari explaining purpose of coram nobis). The Court in Morgan held that district courts have the power to issue the writ under the All Writs Act, 28 U.S.C. § 1651(a). See 346 U.S. at 506-09, 74 S.Ct. at 250. Based on the authority discussed above, the district court determined that a petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character. 14 The government challenges the court’s conclusions under (2) and (3). The government argues that the district court should have dismissed the petitioner’s claim on the ground of laches. It argues that the material upon which the petitioner relies had been a matter of public record for decades, or, alternatively, that petitioner by due diligence should have found the material earlier. For the reasons we have discussed in the preceding section of this opinion, the district court’s decision to grant the writ was clearly based upon material which was not known until very recently. The key document upon which the district court relied was the suppressed report of General DeWitt. The district court squarely confronted the government’s laches contention by stating as follows: [T]he government argues that all of the factual material presented on behalf of petitioner has been a matter of public record for nearly forty years and that petitioner is hence bound by the doctrine of laches from seeking to overturn his convictions.... At no place in [the 1949 Grodzins book] is there any reference to the statements made by General DeWitt in the initial version of his Final Report. In none of the other publications submitted by the government is there any such reference. 627 F.Supp. at 1455. These findings are clearly supported. The suppressed DeWitt Report is not the only evidence which has surfaced as a result of research during this decade. There are memos, which have only recently come to light, by Justice Department lawyers Ennis and Burling relating to the War Department’s suppression of the revised report, and their doubts about the accuracy of the report. See supra notes 11-12. The discovery of these materials recently caused the District of Columbia Circuit to hold that the government’s fraudulent concealment tolled the statute of limitations in cases brought by Japanese Americans for civil damages arising out of their internment. Hohri v. United States, 782 F.2d 227, 246 (D.C.Cir.1986), vacated on jurisdictional grounds, --- U.S. ----, 107 S.Ct. 2246, 96 L.Ed.2d 51 (1987). It appears from both the district court opinion, 586 F.Supp. 769 (D.D.C.1984), and the court of appeals opinion in Hohri, decided before publication of the district court’s opinion in this case, that the original DeWitt Report was not a part of the Hohri record. Thus, ours is an even stronger case against the government. In addition, because this is a collateral attack upon a criminal conviction, there is no statute of limitations. The petitioner does not have to prove fraud. As to the diligence of Hirabayashi in finding the material, we must agree with the district judge who heard direct evidence on this issue and found that “petitioner cannot be faulted for not finding and relying upon [the only surviving copy of the initial version of the report] long before he brought this action in early 1983.” 627 F.Supp. at 1455. Professional historians had failed to discover it as well, and the difficulty for a lay person to locate the initial version was documented in the record by testimony concerning its discovery. Id. at 1453-56.

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Regarding the mootness issue, the district court, although noting that misdemeanor convictions do not present the same adverse consequences as do felony convictions, was satisfied that the case or controversy requirement was fulfilled. The court found that (1) Hirabayashi’s credibility might be impeached in a jurisdiction that allows the use of misdemeanor convictions for that purpose, and (2) that a judge could take the convictions into account when sentencing Hirabayashi if he were ever convicted of another crime. 627 F.Supp. at 1455. The government contends that “ordinary misdemeanors have no ‘collateral consequences’ and therefore are not subject to post-conviction attack absent some special legal disability.” For the following reasons, we find no support for such a per se rule and conclude that the case is not moot. Modern application of mootness principles to criminal cases must draw upon the Supreme Court’s opinion in Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), where the Court determined that it had jurisdiction to hear Sibron’s appeal even though he had completely served his six-month sentence for unlawful possession of heroin. The Court held that “a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Id. at 57, 88 S.Ct. at 1900. In Sibron the Court discussed its previous holding in Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957), where the Court abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed.... Stat[ing] that “convictions may entail collateral legal disadvantages in the future,” id., at 358, [77 S.Ct. at 484], the Court concluded that “[t]he possibility of consequences collateral to the imposition of sentence is sufficiently substantial to justify our dealing with the merits.” Ibid. The Court thus acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences. [footnote omitted] The mere “possibility” that this will be the case is enough to preserve a criminal case from ending “ignominiously in the limbo of mootness.” Parker v. Ellis, 362 U.S. 574, 577, [80 S.Ct. 909, 911, 4 L.Ed.2d 963] (1960) (dissenting opinion). Sibron, 392 U.S. at 55, 88 S.Ct. at 1898-99. The Court acknowledged that it was applying the Pollard presumption and then went on to state: This case certainly meets that test for survival. Without pausing to canvass the possibilities in detail, we note that New York expressly provides by statute that Sibron’s conviction may be used to impeach his character ... [and must be considered in subsequent sentencing]. There are doubtless other collateral consequences. Sibron, 392 U.S. at 55-56, 88 S.Ct. at 1899. The government argues that this language and an accompanying footnote require a petitioner to show specific legislative disability. Id. at 56 n. 17, 88 S.Ct. at 1899 n. 17. 15 The Sibron opinion creates no such requirement. This is reflected in our own coram nobis decisions which consistently apply the Sibron “no possibility of any collateral legal consequences” test. See, e.g., Chavez v. United States, 447 F.2d 1373, 1374 (9th Cir.1971) (per curiam); Byrnes v. United States, 408 F.2d 599, 601 (9th Cir.), cert. denied, 395 U.S. 986, 89 S.Ct. 2142, 23 L.Ed.2d 775 (1969). We have repeatedly reaffirmed the presumption that collateral consequences flow from any criminal conviction. See, e.g., Byrnes, 408 F.2d at 601. As we stated in Holloway, coram nobis relief is available to prevent manifest

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injustice “even where removal of a prior conviction will have little present effect on the petitioner.” Holloway v. United States, 393 F.2d 731, 732 (9th Cir.1968). No court to our knowledge has ever held that misdemeanor convictions cannot carry collateral legal consequences. Any judgment of misconduct has consequences for which one may be legally or professionally accountable. See Miller v. Washington State Bar Ass’n, 679 F.2d 1313, 1318 (9th Cir.1982) (letter of admonition in attorney’s permanent record for which he is professionally accountable constitutes sufficient adverse consequence for Article III). Moreover, the government’s argument here that “ordinary” misdemeanors should not carry the presumption of adverse consequences is misplaced. Hirabayashi’s conviction was for no ordinary misdemeanor. His conviction was one which has been the subject of controversy for more than four decades. A United States citizen who is convicted of a crime on account of race is lastingly aggrieved. C. The Government’s Motion to Vacate and Dismiss. The government contends that the trial court erred by denying its motion to vacate Hirabayashi’s convictions and dismiss the underlying indictments pursuant to Fed.R.Crim.P. 48(a). Rule 48(a) provides: The Attorney General or the United States attorney may by leave of the court file a dismissal of an indictment, information or complaint and the prosecution shall thereupon terminate. Such a dismissal may not be filed during the trial without the consent of the defendant. The rule vests the courts with the discretion to accept or deny the prosecution’s motion. See, e.g., United States v. Weber, 721 F.2d 266, 268 (9th Cir.1983) (per curiam); United States v. Cowan, 524 F.2d 504, 510-11 (5th Cir.1975), cert. denied sub nom. Woodruft v. United States, 425 U.S. 971, 96 S.Ct. 2168, 48 L.Ed.2d 795 (1976). We therefore review the district court’s decision for an abuse of discretion. Rinaldi v. United States, 434 U.S. 22, 32, 98 S.Ct. 81, 86 (1977) (per curiam). In denying the government’s motion, the district court correctly stated that Rule 48(a) provides for dismissal only by leave of the court. The court then determined that “where petitioner seeks to have his petition considered on its merits, the Court is of the opinion that it is not in the public interest, over the objection of petitioner, to grant the government’s motion.” The government argues that the trial court erroneously relied on the second sentence of Rule 48(a) in requiring Hirabayashi’s consent to dismissal because the rule only addresses the accused’s consent during trial. It asserts that no consent is necessary once the trial is over. The district court, however, did not base its denial on a belief that Hirabayashi’s consent was necessary. Rather, it exercised its discretion under the first sentence of Rule 48(a) which requires the prosecutor to have the leave of court to file a dismissal. The district court correctly acted within its discretion in refusing to grant the government’s motion. There is no precedent for applying Rule 48 to vacate a conviction after the trial and appellate proceedings have ended. The cases cited by the government involve a prosecutor’s motion made before or during the pendency of a direct appeal. See Rinaldi, 434 U.S. at 24-25, 98 S.Ct. at 82-83 (motion made when case was on direct appeal); Weber, 721 F.2d at 267 (motion made when case was on direct appeal); United States v. Hamm, 659 F.2d 624, 625 (5th Cir.1981) (en banc) (motion made before sentencing); Cowan, 524 F.2d at 513 (motion made before trial). In a case similar to this one, Korematsu v. United States, 584 F.Supp. 1406 (N.D.Cal.1984), a district court judge recently held that the government could not move under

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Rule 48(a) to vacate a conviction following the lapse of 40-odd years. There, Judge Patel pointed out that Rule 48(a) had its roots in the common law doctrine of nolle prosequi. “As the literal translation of nolle prosequi--’I am unwilling to prosecute’--makes clear, the primary purpose of the doctrine was to allow the government to cease active prosecution.” Id. at 1410- 11 (discussing in detail the development of Rule 48). The court concluded that the prosecutor has no authority to exercise his nolle prosequi prerogatives at common law or to invoke Rule 48(a) after a person has been subject to conviction, final judgment, imposition of sentence and exhaustion of all appeals and, indeed, after a lapse of many years. At that stage, there is no longer any prosecution to be terminated. Id. at 1411. We need not decide whether Rule 48 precludes a district court from ever granting a post-appeal dismissal. Based on the record in this case we cannot find that the district court abused its discretion in denying the government’s motion and considering the merits of Hirabayashi’s request that an injustice be corrected. IV. HIRABAYASHI’S APPEAL OF THE DISTRICT COURT’S REFUSAL TO VACATE THE CURFEW CONVICTION The district court vacated Hirabayashi’s conviction for violation of the exclusion order but left standing the conviction for violation of the curfew order. This was a result which neither side sought and which neither strenuously defends in this court. The district court based its distinction on the premise that the curfew was a lesser restriction on freedom than the exclusion. It does not follow, however, that the Supreme Court would have made such a distinction had it been aware of the suppressed evidence. The Supreme Court in 1943 reviewed only the curfew order and clearly saw it as a serious deprivation of liberty. The Court therefore held that it would be justified only on the basis of a reasonable military judgment of military necessity. 320 U.S. at 99, 63 S.Ct. at 1385. The government suggests that the Justices in the Hirabayashi decision might have made a distinction between the two orders because the dissenting Justices later in Korematsu distinguished the level of infringement of freedom in Korematsu from that in Hirabayashi. Korematsu, 323 U.S. at 246-47, 65 S.Ct. at 207-08 (Jackson, J., dissenting). The relevant issue, however, is not whether a minority of the Justices might have made a distinction, but whether a majority would have. The majority of the Court in Korematsu followed exactly the same rationale that was followed in Hirabayashi and made no such distinction. The majority of the Court in Korematsu said “[n]othing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either [the exclusion or the curfew].” 323 U.S. at 218, 65 S.Ct. at 195. We have seen that Hirabayashi’s two convictions were based upon simultaneous indictments, were tried together, briefed together, and decided together. In its brief to the Supreme Court, the Justice Department argued a single theory of military necessity to support both the exclusion and curfew orders. At the evidentiary hearing before the district court in this case, Ennis explained why: Q.... Did the Department’s arguments on those two points [curfew and exclusion] differ somewhat? A. No, not substantially. Q. Well,--

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A. Because although one was a lesser restriction, it was equally based on what was in our view the difficulty of classifying American citizens--including American citizens. That’s for general curfew of the whole area. The district court erred in distinguishing between the validity of the curfew and exclusion convictions. CONCLUSION The judgment of the district court as to the exclusion conviction is affirmed. The judgment as to the curfew conviction is reversed and the matter is remanded with instructions to grant Hirabayashi’s petition to vacate both convictions.

1 See, e.g., P. Irons, Justice at War (1983); R. Daniels, The Decision to Relocate the Japanese Americans (1975); M. Grodzins, Americans Betrayed (1949); Yamamoto, Korematsu Revisited--Correcting the Injustice of Extraordinary Government Excess and Lax Judicial Review: Time for a Better Accommodation of National Security Concerns and Civil Liberties, 26 Santa Clara L.Rev. 1 (1986). 2 See, e.g., A. Fisher, Exile of a Race (1970); C. McWilliams, Prejudice (1944); Rostow, The Japanese American Cases--A Disaster, 54 Yale L.J. 489 (1954); Dembitz, Racial Discrimination and the Military Judgment: The Supreme Court’s Korematsu and Endo Decisions, 45 Colum.L.Rev. 175 (1945). 3 See, e.g., R. Daniels, S. Taylor & H. Kitano, Japanese Americans: From Relocation To Redress (1986); M. Weglyn, Years of Infamy (1976); D. Myer, Uprooted Americans (1971). 4 Hirabayashi’s case was one of three wartime Japanese internment cases in which the Supreme Court upheld the government’s orders. Fred Korematsu violated a California exclusion order in May 1942, approximately the same time as Hirabayashi. Because of an intervening jurisdictional problem which was certified to the Supreme Court, we did not address the merits of his appeal until December 1943. Korematsu v. United States, 140 F.2d 289 (9th Cir.1943). Thus, his conviction was not affirmed by the Court until a year and a half after the Hirabayashi decision. The Court also affirmed Minoru Yasui’s conviction for violating an Oregon curfew order. The Court handed down its decisions in Hirabayashi and Yasui on the same day. Yasui v. United States, 320 U.S. 115, 63 S.Ct. 1392, 87 L.Ed. 1793 (1943). In February 1983 Yasui filed a petition for coram nobis relief, which was dismissed by the district court upon the government’s motion to dismiss the indictment and vacate the conviction. We held that Yasui’s appeal was untimely and remanded the case to allow Yasui to make a showing of excusable neglect. Yasui v. United States, 772 F.2d 1496, 1499-1500 (9th Cir.1985). Although we specifically retained jurisdiction over the appeal, it was subsequently dismissed as moot due to Yasui’s death. 5 See, e.g., Letter of February 12, 1942, from Attorney General Biddle to Secretary of War Stimson reprinted in R. Daniels, supra note 1, at 107-08; Letter of January 4, 1942, from Assistant to the Attorney General Rowe to General DeWitt, quoted in M. Grodzins, supra note 1, at 238. 6 Hirabayashi was born in the United States. His parents were born in Japan, but came to the United States in the early 1900s at the age of 19. They were married in this country and never returned to Japan. Hirabayashi had never been to Japan and had never even corresponded with anyone there. See Hirabayashi, 627 F.Supp. at 1447 (detailing petitioner’s personal background, education, community activities, etc.)

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7 Hirabayashi’s three month sentence was served after the Supreme Court affirmed his convictions. He had already been incarcerated for nine months; five pending trial and four more pending appeal before bail terms were agreed upon. 8 The memorandum from Solicitor General Fahy to the Supreme Court on May 14, 1943, states more fully: Our position is not that hearings are an inappropriate method of reaching a decision on the question of loyalty. The Government does not contend that, assuming adequate opportunity for investigation, hearings may not ever be appropriately utilized on the question of the loyalty of persons here involved. It is submitted, however, that in the circumstances set forth in our brief, this method was not available to solve the problem which confronted the country. The situation did not lend itself, in the unique and pressing circumstances, to solution by individual loyalty hearings. In any event, the method of individual hearings was reasonably thought to be unavailable by those who were obliged to decide upon the measures to be taken. See Hirabayashi, 627 F.Supp. at 1453-54 (quoting memo). 9 In its “response and motion,” the government said it would be inappropriate to defend the convictions, noting that both the legislative and executive branches have “long since concluded that the curfew and mass evacuation were part of an unfortunate episode in our nation’s history.” The government cited President Ford’s 1976 proclamation formally rescinding Executive Order 9066, and the 1980 congressional creation of the Commission on Wartime Relocation and Internment of Civilians, along with the repeal in 1976 of Pub.L. No. 77-503 (then codified at 18 U.S.C. § 1383) which Hirabayashi was convicted of violating in 1942. 10 Traditionally, the Supreme Court has shown great respect for the views of the Solicitor General--”an advocate whom the Court can trust.” See Jenkins, The Solicitor General’s Winning Ways, 69 A.B.A.J. 734 (1983); Note, Government Litigation in the Supreme Court: The Roles of the Solicitor General, 78 Yale L.J. 1442 (1969). Thus, he owes a special obligation to the Court as well as his client. See O’Connor, The Amicus Curiae Role of the U.S. Solicitor General in Supreme Court Litigation, 66 Judicature 256 (1983); Note, The Solicitor General and Intragovernmental Conflict, 76 Mich.L.Rev. 324 (1977). See also Speech by Rex Lee, Solicitor General of the United States 1981-85, Ohio State University College of Law (March 19, 1986) Lawyering for the Government: Politics, Polemics & Principle, reprinted in 47 Ohio St. L.J. 595 (1986) (discussing multiple roles of Solicitor General). 11 As the Justice Department prepared its brief, Ennis came into possession of the intelligence work of Lt. Commander Kenneth D. Ringle, an expert on Japanese intelligence in the Office of Naval Intelligence. Ringle had reached conclusions directly contradicting the two key premises in the government’s argument. Ringle found (1) that the cultural characteristics of the Japanese Americans had not resulted in a high risk of disloyalty by members of that group, and (2) that individualized determinations could be made expeditiously. See K. Ringle, Report on the Japanese Question 3 (Jan. 26, 1942). Ennis therefore concluded: I think we should consider very carefully whether we do not have a duty to advise the Court of the existence of the Ringle memorandum and of the fact that this represents the view of the Office of Naval Intelligence. It occurs to me that any other course of conduct might approximate the suppression of evidence. Memorandum from Ennis to Solicitor General Re: Japanese Brief, April 30, 1943. Notwithstanding Ennis’ plea, the Justice Department’s brief in Hirabayashi made no mention of Ringle’s analysis.

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12 The footnote actually inserted in the government’s brief was as follows: The Final Report of General DeWitt (which is dated June 5, 1943, but which was not made public until January 1944), hereinafter cited as Final Report, is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. We have specifically recited in this brief the facts relating to the justification for the evacuation, of which we ask the Court to take judicial notice, and we rely upon the Final Report only to the extent that it relates to such facts. Korematsu, Brief for the United States at 11 n. 2. Based upon the revised report, and without knowledge of the existence of the original version, lawyers within the Justice Department had pushed for a stronger footnote which would have at least partially discredited the report. The proposal for this footnote was contained in a memorandum from John L. Burling to Assistant Attorney General Herbert Wechsler dated September 11, 1944, reprinted in Appendix B, Korematsu, 584 F.Supp. at 1423. The full text of the footnote he proposed was: The Final Report of General DeWitt (which is dated June 5, 1943, but which was not made public until January 1944) is relied on in this brief for statistics and other details concerning the actual evacuation and the events that took place subsequent thereto. The recital of the circumstances justifying the evacuation as a matter of military necessity, however, is in several respects, particularly with reference to the use of illegal radio transmitters and to shore-to-ship signalling by persons of Japanese ancestry, in conflict with information in possession of the Department of Justice. In view of the contrariety of the reports on this matter we do not ask the Court to take judicial notice of the recitals of those facts contained in the Report. (emphasis added). 13 After being asked to make copies of the DeWitt report available to the Court, Solicitor General Fahy agreed and said: It is even suggested that because of some foot note in our brief in this case indicating that we do not ask the Court to take judicial notice of the truth of every recitation or instance in the final report of General DeWitt, that the Government has repudiated the military necessity of the evacuation. It seems to me, if the Court please, that that is a neat little piece of fancy dancing. There is nothing in the brief of the Government which is any different in this respect from the position it has always maintained since the Hirabayashi case--that not only the military judgment of the general, but the judgment of the Government of the United States, has always been in justification of the measures taken; and no person in any responsible position has ever taken a contrary position, and the Government does not do so now. Nothing in its brief can validly be used to the contrary. 14 627 F.Supp. at 1454-55. Relying on a footnote in Dellinger, 657 F.2d at 144 n. 9, the court required a showing that “it is probable that a different result would have occurred had the error not been made.” We note here that neither the Supreme Court nor this circuit has imposed such a requirement. In Dellinger, the Seventh Circuit cited Bateman v. United States, 277 F.2d 65, 68 (8th Cir.1960), which in turn relied on the dissent in Morgan, 346 U.S. at 516, 74 S.Ct. at 255. The majority in Morgan never required a showing of prejudice. We need not decide whether there is as high a test as the Dellinger footnote suggests because petitioner has satisfied the higher standard. The district court also stated, citing Morgan, 346 U.S. at 507 n. 9, 74 S.Ct. at 250 n. 9, that the petition must be brought in the convicting court. Hirabayashi satisfied this condition by

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bringing his petition in the Western District of Washington, the district in which he was convicted. 15 The Sibron footnote provides: We note that there is a clear distinction between a general impairment of credibility, to which the Court referred in St. Pierre, see 319 U.S., at 43, [63 S.Ct. at 911], and New York’s specific statutory authorization for use of the conviction to impeach the “character” of a defendant in a criminal proceeding. The latter is a clear legal disability deliberately and specifically imposed by the legislature. The government also cites Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), for the proposition that there must be statutory consequences from a conviction to permit coram nobis relief. The case is distinguishable on several grounds. Lane did not involve a coram nobis petition. It did not even involve a challenge to a criminal conviction. It was an effort through habeas corpus to attack mandatory parole requirements which the court held could not be pursued beyond the expiration of the parole term. Contrary to the government’s view, the Court in Lane reaffirmed the Sibron standard, quoting the no possibility of any collateral legal consequences test and explicitly stating that Sibron was not applicable to that case. Id. at 632, 102 S.Ct. at 1327.

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The President The White House 1600 Pennsylvania Avenue Washington, D.C. 20500

Re: Memorandum in Support of Minoru Yasui’s Nomination for a 2015 Presidential Medal of Freedom

Dear Mr. President:

We recognize that the nation’s highest civilian honor, the Presidential Medal of Freedom, is presented to “individuals who have made especially meritorious contributions to the security or national interests of the United States, to world peace, or to cultural or other significant public or private endeavors.”1 The late Minoru “Min” Yasui merits this prestigious honor in recognition of his lifelong courage and principled, passionate commitment to defending, promoting, and achieving civil and human rights for all Americans. Lauded as “the ideal candidate to receive this highest honor”2 and as “a visionary ahead of his time [who]...had a unique understanding of the path America needed to take” reach its potential,3 Yasui was leader a for many individuals, communities, and social causes from the 1940s until his death in 1986. He spent his life overcoming barriers, challenging injustices to and taking action for Japanese Americans and other marginalized groups, and building bridges across and with many diverse communities. “personifies Yasui the characteristics the Presidential Medal of Freedom seeks to recognize”4 and belongs “ in any conversation of those courageous Americans who helped ground our moral compass in the principles of equality and fair treatment we aspire to as a nation.”5

I. AN EMERGING LEADER

The third son of Japanese immigrants Masuo and Shidzuyo Yasui, Minoru Yasui was born on October 19, , 1916 in Hood River, Oregon. His family had settled in this bucolic town along the Columbia River with other Japanese immigrant families longing Americ to pursue the an d ream. When his father, Masuo, came to the United States as a teenager, he envisioned becoming a U.S. citizen and studying law. Unfortunately, federal law barred Asian immigrants citizenship from ,6 which was required to enter the legal profession, so Masuo had to pursue . other goals 7 Masuo and his brother opened a small store in downtown Hood River, serving other Japanese immigrants who worked the valley’s logging camps, sawmills, and orchards. Over time, the Yasui brothers’ store achieved much success nd a also stood as an important social center for the local Japanese community. Masuo rose to prominence as a community

1 Executive Order 11085, 28 Fed. Reg. 1759 (1963). 2 Bennet, Senator Michael. Letter to President Barack Obama. 18 Dec. 2014. TS. United States Senate, Washington, DC. 3 Alonzo, Christine. er Lett to President Barack Obama. 16 S. Dec. 2014. T Colorado Latino Leadership, Advocacy & Research Organization, Denver, CO. 4 Blumenauer, Representative Earl. Letter to President Barack Obama. 23 Dec. 2014. TS. Congress of the United States, Washington, DC. 5 Bender, Steven W. Letter to President Barack Obama. 22 Dec. 2014. TS. Seattle University School of Law, Seattle, WA. 6 Naturalization Act of 1790, 1 Stat. 103. 7 Fujikura, Yuka Yasui. Letter to President Barack Obama. 20 Dec. 2014. TS. Gaithersburg, MD.

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leader, with his mastery of the English language facilitating his role as a translator and advocate when his fellow immigrants needed the services Caucasian of the community. Setting an example that his son Minoru would later follow in his own life, Masuo became a “trusted intermediary” between the two communities.8

While Hood River provided opportunity and stability for the Yasui family, it was also deemed an “epicenter of -‐ anti Japanese activity” through the early 20th century and in the years following the U.S.’s entry into World 9 War II. Many local stores had signs pronouncing “NO JAPS,” and businesses often refused service to Japanese and Japanese 10 Americans. These early experiences contextualize Yasui’s lens on social issues mettle and in the face of adversity.

From an early age, Yasui exhibited exceptional ambition and dedication to leadership. At the age of 15, he founded the Mid-‐Columbia (Hood River) Chapter of the Japanese American Citizens League (JACL) and served as its president. He graduated salutatorian of his high school in 1933, followed by graduation from e th University of Oregon in 1937 with Phi Beta Kappa honors. In 1939, he distinguished himself as the first Japanese American graduate of the University of Oregon School of Law and the first Japanese American member of the Oregon State Bar. Nonetheless, Yasui was unable to find employment with any of the state’s law firms.11 Months later, he finally accepted a position as a consular attaché for the Consulate General of Japan in Chicago, which enabled him to use his bilingual versatility to bridge the Consulate’s communication with the mainstream community.

The bombing of Pearl Harbor by Japan on December 7, 1941, led Yasui to resign his position in Chicago and return to Oregon, where he sought enlistment . in the U.S. Army An ROTC cadet at the University of Oregon and commissioned second lieutenant upon his graduation, Yasui had received orders to report to Fort but Vancouver, “ there he was told that his service was unacceptable because of his ancestry.”12 At the time, all Japanese American men of draft age, except those already in the armed forces, were classified as 4-‐C, enemy aliens, and forbidden from 13 military service. Undaunted by multiple rejections from military service and determined to do what he could during this turbulent time, Yasui opened a law practice in Portland to help the Japanese 14 American community. He was inundated with requests for legal assistance state’s as the only practicing attorney of Japanese ancestry.15

II. A LIFE OF PRINCIPLE, PASSION, AND COURAGE

8 “The Yasui Legacy.” The Many Faces of Oregon's Workers, circa 1900-‐1940. N.p., n.d. Web. 8 Feb. 2015. . 9 Kessler, Lauren. “ Behind Barbed ” Wire. Stubborn Twig: Three Generations in the Life of a Japanese American Family. New York: Random House, 1993. 238. Print. 10 Kessler. “The Overachievers,” 240-‐41. 11 Hada, Kerry S., and Andrew “ S. Hamano. Five of the Greatest: ” Yasui. Colorado Lawyer. July 1998: 9-‐12, 9. Print. 12 Iwasaki, Ron. Letter to President Barack Obama. Oregon 28 Dec. 2014. TS. Nisei Veterans, Inc., Hillsboro, OR. 13 “Fighting for Democracy: Japanese ” Americans. PBS. PBS, n.d. Web. 11 Feb. 2015. . 14 Yasui, Minoru. Thoughts on Evacuation. 25 Aug. 1982. TS. Collection of Japanese American Citizens League National Committee for Redress, 6-‐9. 15 Ibid., 9.

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Yasui’s early choices signaled what would be common themes in his life: courage; a commitment to justice and equality; and – service especially to those least able to fight for themselves. In a hostile era when Japanese Americans were expressly constitutionally denied guaranteed rights of liberty and due process, Yasui bravely took a stand for himself and his community at great personal and professional risk to himself. He followed his conscience – and the law – even when doing so was illegal or perceived as unpopular or unwise. He adhered to these principles throughout his life, which he committed to justice and equality for all Americans.

a. World War II

The attack on Pearl Harbor forever changed the lives of and the Yasui family other Japanese immigrants and their -‐ U.S. citizen children who faced the ensuing . backlash On February 19, 1942, bowing to public hysteria and unsupported fears of Japanese American loyalty to Japan, President Franklin D. Roosevelt signed Executive Order 9066, which authorized the Secretary of War to “prescribe military areas...from which any or all persons may be excluded.”16 Ten days later, Lieutenant General John L. DeWitt, in charge of the Western Defense Command, issued Public Proclamation No. 1, designating the entire U.S. West Co ast as a military zone which, in a matter of months, led to the ed forc removal of all “ persons of Japanese ” ancestry to internment camps farther 17 inland. On March 1942, 24, General DeWitt issued Public Proclamation No. 3, imposing a curfew travel and and contraband restrictions on all persons of Japanese descent.18

The promulgation of the military curfew order was a critical turning point in Yasui’s life. Viewing it as unconstitutional discrimination against American citizens on ace, the basis of r Yasui the knew order had to be challenged . in court Noted by his lead coram nobis attorney, Peggy Nagae, as the one “who most explicitly aimed to vindicate constitutional liberties,”19 Yasui was the first Japanese American to intentionally violate the military curfew as order part of the integrally connected trio of individuals who independently resisted the World War II curfew and internment. The other two men, Fred Korematsu and Gordon Hirabayashi, have both idential received Pres Medals of Freedom.20 Yasui later wrote of his motivation to initiate a test case in his unpublished memoirs: “If we believe in America, if we believe in equal democracy, if we believe in law and justice – then, each of us, when we ch see or believe su errors are being made, have an obligation to make every effort to correct such mistake[s]...”21

On March 28, 1942, after instructing inform his secretary to the FBI and local police of his intentions, Yasui deliberately walked the streets ter of Portland af curfew hours. Eventually spotting a police officer in the late evening, Yasui presented a copy of the curfew order and insisted on being

16 7 Fed. Reg. 1407 (1942). 17 7 Fed. Reg. 2320 (1942). 18 7 Fed. Reg. 2543 (1942). 19 Nagae, Peggy. Letter to President Barack Obama. 7 Feb. 2015. TS. Peggy Nagae Consulting, OR Portland, . 20 Fred Korematsu received the honor in 1998 from President Clinton, and Gordon Hirabayashi was posthumously awarded in 2012 by President Obama. 21 Yasui, Thoughts, 11.

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arrested. When the officer refused, Yasui went directly to the police station, where he was arrested and his legal ordeal began.22

While awaiting his trial, Yasui was held at the Portland Assembly Center, where the government had confined Portland -‐area Japanese Americans pending their removal and incarceration. Yasui’s one-‐ day trial on June 12, 1942, before the Federal District Court of Oregon primarily the focused on question of Yasui’s loyalty to the United States. Following taken the trial, Yasui was back to the A ssembly C enter, where he provided free legal services and educated other internees about his legal challenge. In September 1942, Yasui the and others at the Assembly Center were sent to the Minidoka Internment Camp in Hunt, Idaho.23

On November 16, 1942, the District Court issued its decision in Yasui’s case. In an unexpected double-‐twist, the Court declared the curfew unconstitutional as U.S. imposed on citizens, but found that Yasui had renounced his citizenship by working for the Japanese Consulate and was therefore an enemy alien.24 Holding that the curfew applied to non-‐U.S. citizens, the court convicted Yasui and sentenced him to -‐ a one year imprisonment.25 Yasui spent the next nine in months jail under solitary confinement.26

On appeal, the Ninth Circuit certified Yasui’s case to the U.S. Supreme Court, which chose to review the case as a on compani to Hirabayashi’s similar constitutional challenge to the curfew order and other military orders leading to the mass Japanese incarceration of Americans.27 On June 21, 1943, deferring to General DeWitt’s supposed military resting judgment and its analysis on racial prejudices, unconfirmed innuendos, and tenuous speculations, the Court upheld the constitutionality of the curfew order in Hirabayashi’s case.28 Based on Hirabayashi , the Court then summarily affirmed Yasui’s curfew violation, but did find that Yasui had not abrogated his U.S. citizenship, the thus rendering citizenship issue irrelevant. The Court remanded Yasui’s case to the District Court 29 for resentencing.

On remand, the District struck Court its finding that Yasui had renounced his citizenship and reduced Yasui’s sentence 15 to days or time served since he had already spent . nine months in jail 30 Released from jail , Yasui was taken back to Minidoka and stayed there until his release in 1944.

b. Forty Years of Service to Diverse Communities

Yasui’s wartime legal challenge was only one chapter in passionately a life dedicated to civil and human rights and justice under the law. Rather than “[going] silently into the night, ‘get[ting] on’ with

22 Ibid., 11-‐12. 23 Hada, 9. 24 See Yasui v. United , States 320 U.S. 115, 116-‐117 (1943). 25 Ibid. 26 Yasui, Thoughts, 24. 27 Yasui, 320 U.S. at 116. 28 Hirabayashi v. United States, 320 U.S. 81 (1943). 29 Yasui, 320 U.S. at 117. 30 United States v. Yasui, 51 F.Supp. 234 (D. Or. 1943) .

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his career as a lawyer, bury[ing] his belief in – the Constitution or like so many of those – interned never again talk[ing] about what had happened,” Yasui “put his 31 principles to work.”

Following a brief time in Chicago after leaving Minidoka, Yasui moved to Denver. In 1945, he took the Colorado S tate B ar examination, and although he received the highest score of all candidates, he was denied admission to the Colorado State Bar because 32 of his criminal conviction. Represented by the American Civil Liberties Union (ACLU), Yasui appealed the denial to the Colorado Supreme Court, which ruled in his . favor 33 This ruling enabled Yasui to set down permanent He roots in Colorado. married his fiancée, True Shibata, and they later had three daughters – Iris, Laurel, and Holly.

In Colorado, Yasui embarked upon a tireless career as a champion for civil liberties and human rights that ended because only of his death. He started his own law practice – in downtown Denver a veritable one-‐man legal aid office characterized by long hours and low pay, serving Japanese Americans seeking to recoup economic losses from their forced wartime evacuation, as well as other clients unable to afford legal representation elsewhere. 34 Yasui also extended his commitment to civil and human rights far beyond the Japanese American community to include African Americans, Latinos, Native Americans, other Asian Pacific Americans, youth, those with disabilities, seniors, and the international human rights community. A “visionary well ahead [ of his time, Yasui] recognized the struggle of all marginalized people and dedicated his life to advocating [on 35 their behalf].”

i. Cross-‐Racial and -‐ Cross Cultural Leadership

Distinguishing himself not only with his serve commitment to Japanese Americans, in his 40 years of public service after World War II Yasui demonstrated equal passion for justice on behalf of other marginalized groups. Denver’s current mayor, Michael B. Hancock, states in his letter endorsing this nomination that Yasui “had an inclusive nature and was concerned for all people,” and that he “knew how to build bridges in the community, realizing that to create change, partnerships and mechanisms for representation had to be 36 in place.”

Yasui broke down barriers and became a leader for In diverse communities. 1946, he helped found and served for eight years on the board of the Urban League of Metropolitan Denver, a group dedicated to assisting frican local A Americans and others of all ethnic and cultural backgrounds to “secur[e] a first class education, achiev[e] economic opportunity, and obtain[] equal respect of civil rights by providing exceptional programs and services in a ” highly diversified city. 37 In 1963, Yasui assisted in the founding of the Latin American Research and Service Agency (now the Colorado Latino

31 Romero, Anthony. Letter to President Barack Obama. 6 Jan. 2015. TS. American Civil Liberties Union, New York, NY . 32 Hada, 10. 33 Ibid. 34 Ibid. 35 Morial, Marc H. Letter to President Barack Obama. 9 Feb. 2015. TS. National Urban League, New York, NY. 36 Hancock, Mayor Michael B. Letter to President Barack Obama. 10 Dec. 2014. TS. Office of the Mayor, Denver, CO. 37 Brewer, Moses. Letter to President Barack Obama. 2 Jan. 2015. TS. Urban League of Metropolitan Denver, Denver, CO.

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Leadership, Advocacy and Research Organization, L or CL ARO), an organization formed to “develop research and provide services to gthen help stren the economic conditions of the Latino community.”38 Yasui’s leadership with CLLARO underscored his knowledge of “the importance of having community representation for all and by all,” and the organization drew lessons from Yasui’s “courage to take stances unpopular to the masses” that “[stood him] unwaveringly on 39 the right side of history.” In 1968 he helped to organize Denver Native Americans United (now Denver Indian Center), an organization dedicated to “empowering youth, families and hrough communities t self-‐determination, cultural identity and education.”40 Yasui established this organization when Denver, as one of five relocation cities for Native Americans searching for stability and opportunity, needed a “gathering place” to respond to the needs of a growing -‐ multi cultural Native community.41

Yasui also dedicated his legal skills civil to rights cases that reached the U.S. Supreme Court. He contributed to amicus curiae briefs filed by the National JACL supporting those who had been discriminatorily targeted because of their race, nationality, and ethnicity. Stainback The cases included v. Mo Hock Ke Lok Po, 336 U.S. 368 , (1949) to defend the rights of Chinese schools and individuals to teach the Chinese language -‐ in the then Territory of Hawaii, and McLaurin v. Oklahoma State Regents for Higher Education, et. , al. 339 U.S. 637 , (1950) a precursor to the Brown landmark v. Board of Education case, that addressed the right of an African American University of Oklahoma doctoral student to have equal accommodations on campus.42

Not surprisingly, Yasui also became a community leader for particular social issues affecting citizens of all races. From the 1970s e until his death, h chaired Denver’s -‐ Anti Crime Council, an independent city commission that organized preventative and rehabilitation projects and promoted police-‐community relations,43 and was a board member of Employ-‐Ex, a program formerly for incarcerated individuals.44 He also served as a board member for his local chapter of the American Red Cross, and was a board member and chairman for Denver Opportunity, 45 a War on Poverty program.

Yasui’s commitment to taking action against discrimination and working across racial communities led to his appointment to key municipal leadership positions. In 1946, Denver’s -‐ then Mayor Benjamin Stapleton enlisted Yasui to help explore and establish a Commission on Community Relations (now Agency for Rights Human and Community Partnerships). From 1959 to 1967, Yasui served as a commissioner and later as elected vice-‐chairman and then chairman. In 1967, the mayor appointed Yasui as Executive Director of the Commission, a position Yasui held until his retirement in 1983. During his leadership tenure, the Commission oversaw police-‐community relations, affirmative action programs in employment, Denver’s fight against crime, youth services, and senior services, to

38 Alonzo, sup . 39 Ibid. 40 Lake, Donald E. Letter to President Barack Obama. 19 Nov. S. 2014. T Denver Indian Center, Inc., CO Denver, . 41 Ibid. 42 Ling, Christopher, and Toan Nguyen. Letter ack to President Bar Obama. 16 Jan. S. 2015. T Oregon Minority Lawyers Association and Oregon Asian Pacific American Bar Association, Portland, OR. 43 1977 Final Narrative . Report Rep. Denver: Denver Anti-‐Crime Council, 1978. Print. 44 Yasui, Minoru. Biographical Data. 31 Dec. Collection 1983. of Minoru Yasui Family, 3. 45 Ibid.

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name a 46 few. Yasui’s Commission years also saw him intimately involved with the Denver Public Schools, including calming the contentious confrontations over desegregation late in the 1960s.47 His time at the Commission’s helm was “without question, the most challenging that any [of the agency’s heads] have faced,” given [existing] the “ internal social conflicts in [the area’s] .” communities 48

Yasui also served on the Colorado State Advisory Committee of the U.S. Commission on Civil Rights, an independent agency established by Congress to inform the development of national civil rights policy and enhance enforcement of federal civil 49 rights laws. Assisting the Commission with fact-‐ finding, investigations, and information dissemination on state and local civil 50 rights issues, Yasui was a member of the Advisory Committee from er 1975, and lat elected as chairman a in 1979, position he held until his death. In these positions, Yasui worked on issues -‐ of race relations, police community relations, immigration, and cross-‐racial and -‐ cross cultural collaborations.51

Notably, the 1950s s to 1970 was a turbulent era in both the national and local landscape, with shifting economic and social issues and the birth of the civil rights movement. Mayor Hancock describes Yasui’s leadership as being “...famously credited with avoiding the racial riots [in Denver] that ignited in other major U.S. cities after the 1968 Dr. assassination of [ Martin L uther K ing, Jr.] because he had built strong relationships with the city’s other minority groups.”52 A former colleague with the Commission on Community Relations says that Yasui’s “commitment to serving the civil and human rights of others was unparallel[ed] to any other person serving the 53 Denver community.”

Beyond the pursuit of justice and U.S. civil rights on soil, Yasui was also ardently committed to world peace and international human rights. In 1976, he helped found and served as president of People-‐to-‐People Corporation of later Denver ( changed to Denver Sister Cities . International) For more than a decade, from -‐ the mid 1970s until his death, he was National a member of the Association of Human Rights Workers and Agencies, which encourages education, training, research, and networking toward the improvement of intergroup relations,54 and he served as a board member of the Colorado Council on International Organizations during the early 1980s.

46 Armstead, David E. Letter to President Barack Obama. 26 Dec. 2014. TS. Louisville, CO. 47 Annual Report 1968-‐1969. Rep. Denver: Commission on Community Relations, 1970. 4. Print. 48 Okubo, Derek P. Letter to President Barack Obama. 4 Dec. 2014. TS. Agency for Human Rights and Community Partnerships, Denver, CO . 49 “USCCR: About : Us Mission.” United States Commission on Civil Rights, n.d. Web. 9 Feb. 2015. . 50 “USCCR: About : Us State Advisory Committees.” United States Commission on Civil Rights, n.d. Web. 9 Feb. 2015. . 51 See Hearing Before the United States ssion Commi on Civil Rights: Hearing Held in Denver, Colorado February 17-‐ 19, 1976. Washington, DC: United States Commission on Civil Rights, 1977. Hathi Trust Digital Library. Web. . 52 Hancock, sup . 53 Armstead, sup . 54 See “WHAT IS NAHRW?” Home. National Association of Human Rights Workers, n.d. Web. 15 Feb. 2015. .

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Yasui’s extensive contributions to diverse communities were recognized beyond the specific efforts that he led or helped to lead. In 1983, the ACLU of Oregon Yasui honored with the E.B. McNaughton Civil Liberties Award for his lifetime commitment to and impact on civil liberties.55 The following year, the ACLU of Northern California recognized him, along with Gordon Hirabayashi and Fred Korematsu, with the Chief Justice Earl F. Warren Civil Liberties Award for “being a prominent civil libertarian.”56 In 1984, the ACLU of Colorado presented Yasui with its highest honor, the Carle Whitehead Award, named after one of the ounders organization’s f and en giv annually to an advocate who has demonstrated unswerving “ devotion to the cause of 57 human justice.” On March 3, 1984, Colorado’s then-‐Governor Richard Lamm and Denver’s then-‐Mayor Federico – Peña later U.S. Secretary of Transportation and Energy esident under Pr Clinton – proclaimed the day “Minoru Day” Yasui “...[i]n part, for being an active member of the civil rights movement in Denver, with his efforts cutting across ethnic lines addressing concerns of every ethnic minority to emerge in Denver.”58 These examples of the wide recognition Yasui received during his lifetime illustrate his influential impact on the broader changing civil and human rights landscape.

ii. Commitment to the Japanese American Community

Alongside his decades of service to diverse communities, Yasui continued to be a leader for Japanese Americans, building a lifetime of work that earned him recognition by the National JACL as “Nisei of the Biennium” in 1952 and, 30 years later, as “JACLer 59 of the Biennium” in 1982. Today he t organization continues to recognize Yasui as “an exemplary American and 60 authentic national hero.”

During his early years in Colorado, when anti-‐Japanese sentiment remained strong, Yasui was an outspoken advocate for the community. He lobbied vigorously against a state law prohibiting land ownership by Japanese immigrants.61 He also lobbied for the federal Evacuation Claims Act 62 of 1948, for which he filed hundreds of claims for losses incurred by the wartime -‐ evacuation, and for the McCarran Walter Act of 1952, which finally enabled his own parents and Issei others of their generation, the , to become U.S. citizens. After passage of the McCarran-‐Walter Act,63 Yasui helped many Issei elderly in Colorado through the naturalization 64 process.

55 Romero, sup . 56 Ibid. 57 “ACLU of Colorado’s Carle Whitehead Bill of Rights Dinner ” Award Nomination Form. ACLU of Colorado. N.p., n.d. Web. 15 Feb. http://aclu 2015. < -‐co.org/wp-‐ content/uploads/files/imce/2014%20Nominations%20Form%20and%20Former%20Awardees.pdf>. 58 Peña, The Honorable Federico. Letter to President Barack Obama. 7 Jan. 2015. TS. N.p. 59 Yasui, Minoru. Biographical Data. 31 Dec. 1983. Denver, CO. 60 A Resolution of the National Council of the Japanese American Citizens League Relating to Endorsement of the Minoru Yasui Medal of Freedom Nomination . and Campaign 10 July 2014. Japanese American Citizens League. JACL National Convention Council Meeting, , San Jose CA. Print. 61 Hada, 10. 62 Pub. L. No. 80-‐886, ch. 814, 62 Stat. 1231 (1948). 63 Pub. L. 82-‐414, 66 Stat. 163 (1952). 64 Hada, 10.

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Yasui also never relinquished the fight that ignited his lifelong passion for justice, continuing to pursue broader redress for Japanese Americans who were deprived of their liberty during World War II. In the 1970s, as a founding member National of the JACL Committee for Redress, he helped build the movement that culminated in the passage Civil of Liberties Act 65 of 1988, signed into law by President Ronald Reagan two years after Yasui’s death.

In 1981, while Yasui was advocating for legislative redress, researchers discovered evidence in long-‐buried government archives showing that the government lied had deliberately to the Supreme Court in the internment cases. refuted This evidence General DeWitt’s claim that the forced removal and incarceration of Japanese Americans was justified by military necessity. In 1983, the astonishing discoveries led Yasui, along with Gordon Hirabayashi and Fred Korematsu, to file identical coram nobis petitions in their original ts cour of conviction to have their wartime convictions set aside based on the government’s monumental fraud on the Court.66

The government moved to dismiss the original indictments, hoping to render the petitions moot and avoid any inquiry into the charges of fraud as it affected the constitutional validity of internment. In Korematsu’s and Hirabayashi’s cases, the courts rejected the government’s ploy and granted the petitions.67 In 1984, however, treating the charges as F a dead issue, the ederal D istrict C ourt of Oregon granted the government’s motion and dismissed Yasui’s petition, thereby vacating his conviction but denying an evidentiary hearing on the claims of governmental misconduct.68 Yasui passed away while his appeal was pending. The Ninth Circuit dismissed the appeal as moot, and the Supreme Court denied review.69

Only his death silenced Yasui and prevented him from continuing his decades-‐long fight for the justice that he had always believed As would prevail. Korematsu’s legal team said in its endorsement of this nomination: “If people saw in Fred the best of the Common Man, and in Gordon a moral foundation of our nation’s values, Min was the warrior patriot carrying on 70 the spirit of Thomas Paine.” The National Council of Asian Pacific Americans, a coalition of 34 prominent and ethnically diverse national Asian Pacific American organizations, has also endorsed Yasui’s nomination, noting that his relentless fight against the wartime treatment of Japanese Americans “represents the best of American optimism, determination, and engagement, even in the face 71 of injustice.”

65 Pub. L. No. 100-‐383, 102 Stat. 904 . (1988) The Act formally apologized for the wartime deprivations of liberty imposed on Japanese Americans and granted redress of $20,000 to each of the thousands who had been unjustly interned. 66 See Nagae, sup. ; Kai, Karen N. Letter to President Barack Obama. 4 Jan. 2015. TS. San Francisco, CA; Kawakami, Rodney L. Letter to President 5 Barack Obama. Jan. 2015. TS. The Law Offices of Rodney L. Kawakami, Seattle, WA. These letters were submitted on coram behalf of the nobis legal teams in the Yasui, Korematsu, and Hirabayashi cases. 67 See Korematsu v. United , States 584 F.Supp. 1406 (N.D. Hirabayashi Cal. 1984); v. United States, 627 F.Supp. 1445 (W.D. Wash. Hirabayashi 1986); v. United States, 828 F.2d 591 (9th Cir. 1987) (granting the petition in full). 68 Yasui v. United , States Civ. No. 83-‐151 BE (D. Or. 1983). 69 Yasui v. United , States 772 F.2d 6 149 (9th Cir. 1985), cert. den. 484 U.S. 971 (1987). 70 Kai, sup . 71 Letter to President Barack Obama. 18 Sept. 2014. TS. National Council of Asian Pacific Americans, Washington, DC. This letter was submitted on behalf of 18 member organizations.

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IV. AN ENDURING LEGACY

While Yasui was rightly recognized during his s lifetime for hi contributions to and accomplishments in the civil and human rights community, especially significant is how h is legacy has remained vibrant nearly 30 years after his death.

Since his passing, Yasui has received extensive honors. For example, in 1994, he received an inaugural Trailblazer Award (now the Daniel K. Inouye Trailblazer Award) from the National Asian Pacific American Bar Association, the organization’s most prestigious 72 honor. Yasui is also the namesake for several awards and titles that promote the values by which he lived. In Denver, the Minoru Yasui American Inn of Court helps lawyers and judges rise to higher levels of community engagement and professionalism: “There was no namesake more apropos to remind the legal community of these values than Minoru Yasui.”73 The Minoru Yasui Community Volunteer Award, founded more than 40 years ago, continues to be bestowed today to “unsung hero[es]” serving the Denver community and is a “living tribute to the high principals and courage of an outstanding American citizen.”74 The Asian Pacific American Bar Association of Colorado annually presents the Minoru Yasui Community Service Award, which “honors an individual or organization whose goal of community service exemplifies the achievements of Yasui,” and the Minoru Yasui Memorial Scholarships, which recognize law students continuing Yasui’s work of promoting civil rights and public service.75 In 2002, the University of Oregon School of Law established a Minoru Yasui Endowment for Human to and Civil Rights Law “[remember] the courage of one of the law school’s most visionary alumni, and encourage[] young lawyers and academics to advance his legacy of justice in the years to come.”76

Yasui’s story has also inspired efforts to educate new generations about heroism in the face of injustice. Several productions document Yasui’s life, including Unfinished Business (1986) by Academy Award-‐winning filmmaker Steven Okazaki, Family Gathering (1989) by Lise Citizen Yasui, Min (1983) by Mike Goldfein, and a tribute film by Holly Yasui to be completed later this The year. A staged reading, Constitution in a Time of War: The Trial , of Minoru Yasui with narration written Judge by Denny Chin of the U.S. Court of Appeals for the Second Circuit, has es been presented to audienc throughout the United States. In addition, Hood River teacher Sarah Segal led her sixth-‐ and seventh-‐grade class in an “Unsung Hero” project about Yasui during Fall 2014. The students interviewed Yasui family members, created a walking tour of Yasui’s life, and wrote a letter and created an accompanying video endorsing this nomination for the Presidential Medal of Freedom.

72 “Daniel K. Inouye Trailblazers Past Recipients.” National Asian Pacific American Bar Association, n.d. Web. 15 Feb. 2015. . 73 Pratt, The Honorable Charles M. Letter to President Barack S. Obama. 31 Dec. 2014. T Minoru Yasui American Inn of Court, Denver, CO. 74 Silver, Darlene. Letter to President Barack Obama. Minoru 12 Dec. 2014. TS. Yasui Community Volunteer Award: A Program of the Denver Foundation, Denver, CO. 75 Wang, Andrea, and Andrew S. Hamano. Letter to President Barack Obama. 22 Jan. 2015. TS. Asian Pacific American Bar Association of Colorado and Colorado Asian Pacific American Bar Foundation, CO Denver, . 76 Moffitt, Michael. Letter to President Barack Obama. 26 Dec. 2014. TS. Office of the Dean, University Oregon School of Law, Eugene, OR.

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Yasui has also received official recognition in both Oregon and Colorado. Oregon’s then-‐ Governor Neil Goldschmidt issued a proclamation recognizing March 28, 1990, as “Minoru Yasui Recognition Day,” because Yasui’s “actions and words have helped to ensure and to strengthen civil rights for all Americans.”77 In 1999, -‐ then Mayor Wellington Webb, Denver’s first African American mayor, dedicated a downtown city building “Minoru Yasui Plaza,” explaining in his letter of endorsement for this nomination that “generations should be aware of his courage and public service.”78 Yasui is also listed as a “Civil Rights Leader” Oregon in the Blue , Book an official fact book that includes a list of 75 “Notable Oregonians” who achieved significance in their pursuits.79 Yasui occupies that list alongside other luminaries such as explorer Merriweather Lewis, Chief Joseph of the Nez Perce tribe, and U.S. Senator Mark O. Hatfield.80

Today, elected leaders in Yasui’s home states strongly endorse the nomination of Yasui for a Presidential Medal of Freedom. These leaders include U.S. Senators 81 Jeffrey Merkley (OR), Ron Wyden (OR),82 and Michael Bennet 83 (CO), and U.S. Representatives Mike Coffman 84 (CO), Diana DeGette (CO),85 Jared Polis (CO),86 Earl Blumenauer (OR),87 Suzanne Bonamici 88 (OR), and Peter DeFazio 89 (OR). U.S. Representative Greg Walden (OR), who shares Yasui’s hometown of Hood River, has known members of the Yasui family for decades and reflects in his endorsement letter that “[Yasui’s] life and work continue to inspire [his] own public 90 service.” Other state and local officials supporting Yasui’s nomination include Colorado Governor John Hickenlooper,91 Colorado Attorney General John 92 Suthers, Colorado

77 “Japanese-‐American Honored.” The Oregonian [Portland] 29 Mar. 1990. Print. 78 Webb, The Honorable Wellington E. Letter to President Barack Obama. 19 Dec. S. 2014. T Webb Group International, Denver, CO . 79 “Notable Oregonians: Minoru Yasui -‐ Civil Rights Leader.” Oregon Blue . Book N.p., n.d. Web. 15 Feb. 2015. . 80 “Other Notable Oregonians.” Oregon Blue . Book N.p., n.d. Web. 15 Feb. 2015. . 81 Merkley, Senator Jeff. Letter to President Barack Obama. 13 Jan. 2015. TS. United States Senate, Washington, DC. 82 Wyden, Senator et Ron . al Letter to President Barack Obama. 26 Jan. 2015. TS. United States Senate, Washington, DC. 83 Bennet, sup . 84 Coffman, Representative Mike. Letter to President Barack Obama. 5 Jan. 2015. TS. Congress of the United States, Washington, DC. 85 Honda, Representative Michael et M. . al Letter to President Barack Obama. 9 Feb. 2015. TS. Congress of the United States, Washington, DC. 86 Polis, Representative Jared. Letter to President Barack Obama. 23 Dec. 2014. TS. Congress of the United States, Washington, DC. 87 Blumenauer, sup . 88 Bonamici, Representative Suzanne. Letter to President Barack Obama. 5 Jan. 2014. TS. Congress of the United States, Washington, DC. 89 DeFazio, Representative Peter A. Letter to President Barack Obama. 31 Dec. 2014. TS. Congress of the United States, Eugene, OR. 90 Walden, Representative Greg. Letter to President Barack Obama. 3 Feb. 2015. TS. Congress of the United States, Washington, DC. 91 Hickenlooper, Governor John W. Letter to President Barack Obama. 19 Dec. 2014. TS. Office of the Governor, Denver, CO. 92 Suthers, Attorney General John. Letter to President Barack Obama. 5 Jan. Office 2015. of the Attorney General, Denver, CO.

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Attorney General-‐Elect Cynthia Coffman,93 Oregon Attorney General Ellen Rosenblum,94 and Multnomah County (OR) Chair Deborah 95 Kafoury.

Elected leaders outside of Colorado and Oregon have also recognized Yasui as a national hero meriting a Presidential Medal of Freedom. The array of leaders crossing racial, ethnic, and party lines includes U.S. Senators Mazie Hirono (HI), Barbara Boxer (CA), Maria Cantwell (WA), Mike Enzi (WY), and Dianne Feinstein (CA),96 and U.S. Representatives Mike Honda (CA), Judy Chu (CA), Juan Vargas (CA), Jim McDermott (WA), Tony Cardenas (CA), Joaquin Castro (TX), Sheila Jackson Lee (TX), Ted Lieu (CA), Beto O’Rourke (TX), Gregory W. Meeks (NY), Doris O. Matsui (CA), Eleanor Holmes Norton (DC), David Reichert (WA), Raul Ruiz (CA), Gregorio Kilili Camacho Sablan (MP), Robert “Bobby” Scott (VA), Adam Smith (WA), Mark Takano (CA), and Maxine 97 Waters (CA). Utah’s Attorney General, Sean D. Reyes, has also submitted a letter of endorsement for this nomination.98

The profound national reach of Yasui’s legacy is perhaps illustrated most clearly in the invaluable lessons he left the for broader community that now carries on the mantle of justice Yasui’s and equality. courage to build relationships and work across racial and ethnic communities, to break new ground, and to challenge status the quo “helped lay the foundation and shape the work that many [civil and human rights leaders] are engaged in today.”99

The cross-‐racial, cross-‐cultural, and grasstops-‐to-‐grassroots collaborations that were integral to Yasui’s vision for achieving equality were revolutionary at the time, yet are recognized as fundamental to social justice work even today. The Leadership Conference on Civil and Human Rights, a coalition with a diverse membership of more than 200 national 100 organizations, notes in its letter of endorsement that Yasui had a “prescient understanding of the need for civil rights leaders to work for equality and justice across boundaries of race, class, disability status, and 101 religion.” Denver’s first Latino mayor Federico Peña observes:

Minoru Yasui was decades ahead of his time and a true pioneer in the cross-‐racial and cultural fight for civil rights and human rights...He stands for taking action to effect positive change at all

93 Coffman, Attorney General-‐Elect Cynthia. Letter to President Barack Obama. 5 Jan. 2015. Office of the Attorney General, Denver, CO. 94 Rosenblum, Attorney General Ellen. Letter to President Barack Obama. 21 Jan. 2015. TS. Department of Justice, Salem, OR. 95 Kafoury, Chairwoman Deborah. Letter to President Barack Obama. 2 Dec. 2014. TS. Multnomah County, Portland, OR. 96 Wyden et . al , sup. 97 Honda et ., al sup. 98 Reyes, Attorney General Sean D. Letter to President Barack Obama. 11 Feb. 2015. TS. Office of the Attorney General, Salt Lake City, UT. 99 Romero, sup . 100 “Coalition Members of The Leadership Conference on Civil ” and Human Rights. The Leadership Conference on Civil and Human N.p., Rights. n.d. Web. 15 Feb. 2015. . Many member organizations have independently submitted letters of endorsement. 101 Henderson, Wade. Letter to President Barack Obama. 15 Jan. 2015. TS. Leadership Conference on Civil and Human Rights, Washington, DC.

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levels – from the local to the national to the international, and from the grass roots to Halls of Congress.”102

Recognizing Yasui’s significant contributions to diverse communities, the dozens of prominent organizations and public figures endorsing this nomination for a 2015 Presidential Medal of Freedom stand as a testament to both the unique and universal influence Yasui has left on their work and for future generations.

V. CONCLUSION

Minoru Yasui’s bravery, bold initiative, and actions undaunted to achieve justice touched a rare breadth of American society imparted and lasting lessons that are carried by peers and a new generation of leaders from every background, walk of life, y. and corner of the countr “His life reflects his deep love of country and constitution and his unspeakable faith in the greatness of our nation” and “his extraordinary efforts to ensure a more perfect union for us all.”103 Civil rights attorney Dale Minami, who led Fred Korematsu’s coram nobis team, said of Yasui:

His life was a testament to the commitment to live a life to breathe spirit into the Constitution, to help those whose disadvantages could be overwhelming, to speak for those who could not speak for their selves. And he did these powerful things daily, for the rest of his life, until he left us physically but with a monumental legacy of good.104

For this lasting legacy, Minoru Yasui is a true a American hero meriting Presidential Medal of Freedom. Others have been justly honored for their courageous defiance of the World War II curfew and internment orders in furtherance of our nation’s most valued principles. Yasui is equally deserving of that same honor – not only for his actions to challenge these for injustices, but also the life he led in pursuit of civil rights and liberties and equality for all Americans.

Most Respectfully,

Peggy A. Nagae, Chair

Minoru Yasui Tribute Project

102 Peña, sup. 103 DeFazio, sup . 104 Minami, Dale. Letter to President Barack Obama. 23 Dec. 2014. TS. Minami Tamaki LLP, San Francisco, CA.

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78th OREGON LEGISLATIVE ASSEMBLY--2016 Regular Session House Bill 4009 Sponsored by Representatives CLEM, GILLIAM (Presession filed.)

SUMMARY

The following summary is not prepared by the sponsors of the measure and is not a part of the body thereof subject to consideration by the Legislative Assembly. It is an editor’s brief statement of the essential features of the measure as introduced. Designates March 28 of each year as Minoru Yasui Day. Declares emergency, effective on passage.

1 A BILL FOR AN ACT 2 Relating to a day to honor Minoru Yasui; and declaring an emergency. 3 Whereas 100 years ago, in 1916, Minoru Yasui was born in Hood River, Oregon, to Masuo and 4 Shidzuyo Yasui, Japanese immigrants, making him a second generation Japanese American, or 5 Nisei; and 6 Whereas in 1933, Minoru Yasui graduated salutatorian from Hood River High School, and in 7 1937 graduated Phi Beta Kappa from the University of Oregon and was commissioned a Second 8 Lieutenant in the United States Army; and 9 Whereas in 1939, Minoru Yasui became the first Japanese American graduate of the University 10 of Oregon School of Law and the first Japanese American member of the Oregon State Bar; and 11 Whereas on March 28, 1942, Minoru Yasui violated a military curfew imposed under Executive 12 Order 9066—the order that led to the incarceration of 120,000 Japanese Americans during World 13 War II; and 14 Whereas Minoru Yasui deliberately challenged that curfew by walking the streets of Portland, 15 Oregon, and then turned himself in to the Portland police so that he could test the constitutionality 16 of such discriminatory regulations; and 17 Whereas Minoru Yasui lost his case in the United States District Court for the District of 18 Oregon and spent nine months in solitary confinement in a six-foot-by-eight-foot cell in the 19 Multnomah County Jail awaiting his appeal to the United States Supreme Court; and 20 Whereas the United States Supreme Court ruled against Minoru Yasui in regard to the military 21 curfew, and he was released from jail only to be incarcerated in the Minidoka War Relocation 22 Center in Idaho; and 23 Whereas after his release from Minidoka in 1944, Minoru Yasui settled in Denver, Colorado, 24 where he practiced law and helped found and participated in many organizations, including the Ur- 25 ban League of Metropolitan Denver, the Latin American Research and Service Agency, Denver 26 Native Americans United and various War on Poverty programs; and 27 Whereas Minoru Yasui was appointed to the Denver Commission on Community Relations, for 28 which he served as vice-chair, chair and executive director, and as such was an active advocate for 29 civil and human rights whose efforts cut across ethnic and religious lines and addressed the con- 30 cerns of all minorities and marginalized people; and 31 Whereas Minoru Yasui was an active member of the Japanese American Citizens League (JACL)

NOTE: Matter in boldfaced type in an amended section is new; matter [italic and bracketed] is existing law to be omitted. New sections are in boldfaced type.

LC 231

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HB 4009

1 throughout his life, taking on leadership roles at both the local and national level, and was a 2 founding member of the Mile High Chapter of JACL in Colorado and the Mid-Columbia Chapter of 3 JACL in Hood River, Oregon; and 4 Whereas Minoru Yasui reopened his World War II Supreme Court case in 1983 under a writ of 5 error coram nobis in the United States District Court for the District of Oregon; and 6 Whereas as chair of the JACL National Redress Committee, Minoru Yasui helped build and lead 7 the movement seeking an official apology and reparations for the injustices perpetrated against 8 Japanese Americans during World War II, actions that led to passage of the Civil Liberties Act of 9 1988 two years after his death; and 10 Whereas Minoru Yasui is buried in his beloved hometown of Hood River, Oregon, despite his 11 many years based in Denver; and 12 Whereas President Barack Obama awarded Minoru Yasui the Presidential Medal of Freedom 13 on November 24, 2015, for devoting his life “to fighting for basic human rights and the fair and equal 14 treatment of every American”; and 15 Whereas when presenting the medal, President Obama said, “Min’s legacy has never been more 16 important. It is a call to our national conscience, a reminder of our enduring obligation to be the 17 land of the free and the home of the brave, an America worthy of his sacrifices”; now, therefore, 18 Be It Enacted by the People of the State of Oregon: 19 SECTION 1. March 28 of each year is designated as Minoru Yasui Day. 20 SECTION 2. This 2016 Act being necessary for the immediate preservation of the public 21 peace, health and safety, an emergency is declared to exist, and this 2016 Act takes effect 22 on its passage. 23

[2]

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Dean JoAnne Epps Beasley School of Law, Temple University Philadelphia, Pennsylvania

Contents Presentation Slides 6–1 Bill Kennedy, et al., Framing in Race Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message. This article was first published inClearinghouse Review: Journal of Poverty Law and Policy, Jan–Feb. 2010. ©2010 Sargent Shriver National Center on Poverty Law...... 6–15 Patricia T. O’Connor and Stewart Kellerman, The Light and Dark of Language, The Grammarphobia Blog (Dec. 16, 2009), http://www.grammarphobia.com/blog/2009/12/ the-light-and-dark-of-language.html. Reprinted with permission of authors...... 6–31 Gail Ramsey, Communication Theories on Trial: Can the Scales of Justice Be Swayed by the Application of Communication Theories? 21 COMM. & L. 31 (1999). Reprinted with permission of William S. Hein & Co., Inc...... 6–35 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

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Persuading Diverse Audiences: Making Your Words Work for You

JoAnne A. Epps Oregon State Bar Association 2016 Litigation Institute & Retreat

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[Star Wars]

[Awaken the Force Within]

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PERSUADING DIVERSE AUDIENCES

The Context Tried & True Principles of Advocacy • Focus on your Goals. • All goals are not alike. Identify Primary and Secondary Goals.

Understand Implicit Bias Facebook Fights Bias

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PERSUADING DIVERSE AUDIENCES

Beautiful[Beautiful Skin Skin]

PERSUADING DIVERSE AUDIENCES The Context Tried & True Principles of Advocacy • Make your Audience the focus of your advocacy. • Learn how people make decisions. • Attitudes are predispositions to think or behave in a certain way. • Beliefs are the degree of truth a person assigns to something. • Values are core beliefs that are deeply felt as important to life. • The human mind strives for consistency.

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PERSUADING DIVERSE AUDIENCES

The Context Tried & True Principles of Advocacy

• Seek to have your listener identify with you. • Establish common ground. • Find high-level issues to appeal to the listener.

PERSUADING DIVERSE AUDIENCES

The Context Tried & True Principles of Advocacy • Study the Principles of Rhetoric. They are classic principles for a reason. • Deductive Reasoning: where the conclusion follows necessarily from the premises and contains no new information. • Inductive Reasoning: where the conclusion relies upon an inference and contains new information not found in the premises.

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Understand Implicit Bias

Implicit Association Test. www.implicit.Harvard.edu

Understand the Impact of Words & Images

Angel Food Cake VS. Devil’s Food Cake

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Black Sheep

Understand the Impact of Words & Images

Black Cloud

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White as Snow

Understand the Impact of Words & Images

Dark as Coal

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Black Mark

Understand the Impact of Words & Images

White Hat vs. Dark Hat

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Gypped

Understand the Impact of Words & Images

Paddy Wagon

[Paddy Wagon]

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PHILADELPHIA PHILADELPHIA LEGAL JUSTIN WILSON INQUIRER INTELLIGENCER

Philadelphia Inquirer (8/9/15): “Is Philadelphia Legal Intelligencer Justin Wilson, an IndyCar (8/11/15): “Harvard Law School driver, died after a crash on Corruption Endemic to Region?” Graduate Takes a Dark Turn” – alleged August 23, 2015. Family says “Still, the stream of charges adds to have kidnapped a young women “There is light in this time of a dark chapter to two states (PA from her Vallejo, California home. The darkness”, referring to his and NJ) already widely regarded National Law Journal, in a related article decision to donate his organs. as among the country’s most (8/3/15) similarly describes the suspect corrupt”. as a “bright young lawyer [who] took a (Photo credit: USA Today) dark turn”.

Understand the Impact of Words & Images

Netflix: Frankie and Charlie. In talking about Jane Fonda’s romantic interest, “We know a fair amount about the darker side of ‘Guy’. How much worse could it possibly get?”

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Study Your Decision-Maker Visible and Invisible Differences

Make Your Words Work for You

Respect the Power of Confirmation Bias: a tendency to search for or interpret information in a way that confirms one's preconceptions

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Stay Informed, Stay Vigilant and Fight!

RESOURCES

www.implicit.Harvard.edu

McKinsey & Company Fights Bias: https://www.youtube.com/watch?v=JFW2cfzevio&feature=youtu.be

Bill Kennedy, et al., Framing in Race Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message, 43 CLEARINGHOUSE REV. J. OF POVERTY L. & POL’Y 408 (Jan.–Feb. 2010).

THE TWELVE SECRETS OF PERSUASIVE ARGUMENT, Waicukauski, Sandler & Epps (2009)

Herbert, The Color of Sin – Why the Good Guys Wear White, Scientific American, November 1, 2009

Eric Berne, The Mythology of Dark and Fair: Psychiatric Use of Folklore, 72 J. OF AM. FOLKLORE 283 (1959).

Gail Ramsay, Communication Theories on Trial: Can the Scales of Justice be Swayed by the Application of Communication Theories?, 21 Comm. & L. 31 (1999).

Patricia T. O’Connor and Stewart Kellerman, The Light and Dark of Language, The Grammarphobia Blog (Dec. 16, 2009), http://www.grammarphobia.com/blog/2009/12/the-light-and-dark-of-language.html

Ethos and the Art of Argument, 26 Litigation 31, Fall 1999 (Waicukauski, Sandler and Epps). Published in Litigation, Volume 26 Number 1, Fall 1999. © 1999 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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January–February 2010 Volume 43, Numbers 9–10

Framing a Persuasive Advocacy Message

Medicare’s “Improvement Standard”

Remote Communication for Persons with Hearing Disabilities

Financial Obligations in Illinois’s Criminal Justice System Right to Counsel in Foreclosure and the Due Process State-Action Requirement Recovering Shriver’s Vision for Poverty Law “Fugitive Felon” Provision Settlement

23rd Annual Litigation Institute and Retreat 6–15 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

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By Bill Kennedy, Emily Fisher, and Colin Bailey

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Bill Kennedy sbnjoh!jt!b!tvcumf!zfu!qpxfsgvm!dpnnvojdbujpot!tusbufhz!xjui!wfsz!cspbe!bq. Managing Attorney qmjdbujpot-! xjefmz! vtfe! cz! cvtjofttft! nbslfujoh! uifjs! qspevdut! boe! tfswjdft-! Colin Bailey qpmjujdjbot!qvtijoh!uifjs!qpmjdjft-!pshboj{bujpot!tffljoh!gvoejoh!gps!uifjs!qsp. Staff Attorney F hsbnt-!boe!puifst!up!bdijfwf!b!tusbufhjd!hpbm/!Ju!jt!bmtp!b!wfsz!jnqpsubou-!uipvhi!mjuumf! Legal Services of Northern California voefstuppe-!uppm!gps!boujqpwfsuz!bewpdbuft!efbmjoh!xjui!jttvft!pg!sbdjbm!jofrvjuz/! 515 12th St. Sacramento, CA 95814 Gsbnjoh!cvjmet!vqpo!bo!voefstuboejoh!pg!uif!tdjfodf!pg!dphojujpo!uibu!usbdlt!ipx!uif! 916.551.2150 csbjo!qspdfttft!jogpsnbujpo!boe!qspnqut!dfsubjo!bobmzujd!gsbnft!uispvhi!xijdi!gbdut! [email protected] 3 [email protected] bsf!tpsufe/ !Uif!nptu!ffdujwf!xbz!up!gsbnf!b!nfttbhf!up!bdijfwf!bo!bewpdbdz!pvu. dpnf!nbz!ejfs!gspn!uif!xbz!bewpdbuft!ubml!bcpvu!uif!tbnf!jttvft!xjuijo!uif!mfhbm!bje! Emily Fisher dpnnvojuz/!Uif!nptu!ffdujwf!nfttbhjoh!jo!bo!bewpdbdz!tusbufhz!nbz!sfrvjsf!uibu!xf! Staff Attorney fnqmpz!mbohvbhf!uibu!gffmt!vodpngpsubcmf!cfdbvtf!ju!tffnt!jodpnqmfuf!ps!fwfo!jobd. Legal Services of Northern California dvsbuf!jo!tpnf!sftqfdut/!Jo!uiptf!dbtft-!xf!nbz!gbdf!b!dipjdf!cfuxffo!vtjoh!mbohvbhf! 541 Normal Ave. xjui!xijdi!xf!bsf!dpngpsubcmf!boe!gbnjmjbs!boe!qvstvjoh!b!xjoojoh!tusbufhz!gps!pvs! Chico, CA 95928 dmjfout/! 530.345.9491 [email protected] Bewpdbuft! bu! Mfhbm! Tfswjdft! pg! Opsuifso! Dbmjgpsojb! boe! jo! uif! cspbefs! sbdf! frvjuz! npwfnfou!ibwf!cffo!fybnjojoh!pvs!tpdjfuzÖt!epnjobou!gsbnft/4!Uifz!ibwf!cffo!ef. wfmpqjoh!boe!vtjoh!gsbnjoh!uppmt!up!qsfqbsf!qsftfoubujpot!up!dmjfou!hspvqt-!up!bewp. dbuf!cfgpsf!mpdbm!hpwfsonfou!cpejft-!boe!up!bshvf!uifjs!dbtft!jo!dpvsu/!Jo!uijt!bsujdmf! xf!qsftfou!uif!uifpsz!boe!bqqmjdbujpo!pg!gsbnjoh!bt!bo!bewpdbdz!uppm-!mfbwjoh!pvu!boz! ejtdvttjpo!pg!tvddfttft!boe!pctubdmft/!Bt!b!tusbufhz-!gsbnjoh!ibt!cspbe!bqqmjdbujpo!

1A DICTIONARY OF THOUGHTS 589 (Tryon Edwards ed., 1908), http://tinyurl.com/ycscvwu.

2For a discussion of social cognition as a tool in race conscious advocacy, see Mona Tawatao et al., Instituting a Race- Conscious Practice in Legal Aid: One Program’s Effort, 42 CLEARINGHOUSE REVIEW 48 (May–June 2008). Our article is the sixth in a series of Legal Services of Northern California’s Race Equity Project articles that discuss tools to advance a race- conscious antipoverty law practice. For more discussion of tools and articles on race equity, see the authors’ blog, Legal Services of Northern California, The Race Equity Project, The Race Equity Feed, http://lsnc.net/equity/.

3For ongoing discussion of frames at work in the context of race equity, and further Web-based media resources on this subject, see Legal Services of Northern California, The Race Equity Project, http://lsnc.net/equity/category/framing/ (posts under “Framing”).

408 Clearinghouse REVIEW Journal of Poverty Law and Policy N January–February 2010

23rd Annual Litigation Institute and Retreat 6–16 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

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4A full exploration of the topic of framing would take hundreds of pages. In keeping with the mission of the Race Equity Project, here we focus on framing in race-conscious advocacy alone. However, framing can be applied to clients’ advantage in almost any political exchange. We encourage advocates to put this tool to use in all of their advocacy work.

5George Lakoff, George Lakoff Manifesto 2, http://bit.ly/4Qydx8.

6Recent literature highlights that emotion and the unconscious mind account for a much larger portion of human decision making than the Enlightenment model, conceptualizing thought as dispassionate and logical rationality, would have us think (see, e.g., JONAH LEHRER, HOW WE DECIDE (2009); A. Bechara, The Role of Emotion in Decision-Making: Evidence from Neurological Patients with Orbitofrontal Damage, BRAIN AND COGNITION, June 2004, at 30); The Situationist, The Situation of Reason (2007), http://bit.ly/6wVNwi.

7See DREW WESTEN, THE POLITICAL BRAIN: THE ROLE OF EMOTION IN DECIDING THE FATE OF THE NATION 224–27 (2007) (several studies show that much of our behavior is based on information we have unconsciously internalized).

8See, e.g., The Situationist, Unconscious Situation of Choice (2008), http://bit.ly/4mR4FI. Cf. GEORGE LAKOFF, THE POLITICAL MIND: WHY YOU CAN’T UNDERSTAND 21ST-CENTURY AMERICAN POLITICS WITH AN 18TH-CENTURY BRAIN 3 (2008); JOSEPH E. LEDOUX, SYNAPTIC SELF: HOW OUR BRAINS BECOME WHO WE ARE 8–9 (2002) (function of the brain’s amygdala “defense system” for assessing and reacting to danger); WESTEN, supra note 7, at 51–54.

Clearinghouse REVIEW Journal of Poverty Law and Policy N January–February 2010 409

23rd Annual Litigation Institute and Retreat 6–17 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

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9See Franklin D. Gilliam Jr., FrameWorks Institute, The Architecture of a New Racial Discourse 3 (2006), http://bit.ly/7s5JaF. See also FrameWorks Institute, Talking About Disparities: The Effect of Frame Choices on Support for Race-Based Policies 1 (2009), http://bit.ly/91YIwd.

10Cf. Jon Hanson & Kathleen Hanson, The Blame Frame: Justifying (Racial) Injustice in America, 41 HARVARD CIVIL RIGHTS–CIVIL LIBERTIES LAW REVIEW 413, 416–17, 427–28 (2006) (how different frames ‘blaming the victims’ of injustice have arisen in American society throughout its history as a way of resolving inner conﬂict between the desire for fairness and the reality of injustice).

11MAHATMA GANDHI & KRISHNA KRIPALANI, ALL MEN ARE BROTHERS: AUTOBIOGRAPHICAL REFLECTIONS 69 (1958).

12See ROBERT BURTON, ON BEING CERTAIN: BELIEVING YOU ARE RIGHT EVEN WHEN YOU’RE NOT (2009) (the psychological, emotional, and evolutionary reasons for our preference for certainty, including the adaptive need to act decisively). See also AL GORE, THE ASSAULT ON REASON (2007) (the use of fear and falsehood and the orchestrated demise of skepticism, quite possibly the Enlightenment’s central and greatest concept, in modern American political discourse).

13This is especially true since the now-dominant American frame on race is that, but for the ignorant and intentional racist actions of a few “bad apples,” America has all but overcome its racist history and now proceeds without regard to color. This is the “color-blind” frame, which, when invoked, aims to stop the conscious discussion of race and attempts to shift blame for the creation of social conﬂict on those claiming unfair treatment on account of race.

14George Lakoff notes: “Conservatives have managed to frame public debate on just about every issue. They have framed government regulation as interference in the free market, which is in turn framed as nature’s way of optimizing wealth for all. Conservatives have framed poor people as undisciplined and to blame for their own poverty, environmentalists as tree huggers who care more about owls than people, criticism of government foreign policy as support for the enemy, and the Iraq War as part of a War on Terror” (Lakoff, supra note 5). On the topic of race, during the past approximately thirty years, framing has been used effectively against our clients’ interests, particularly by conservative political and proﬁt-maximizing corporate interests to, for example, frame afﬁrmative action policies as “reverse discrimination” and “preferential treatment”; to cast all government programs, including safety net programs, as “wasteful” and “creating dependence” and the poor as “undeserving” of “coddling.”

15john powell, Director, Kirwan Institute for the Study of Race and Ethnicity, Ohio State University, Keynote Address, National Legal Aid and Defenders Association Directors of Litigation and Advocacy Conference (June 22, 2008).

410 Clearinghouse REVIEW Journal of Poverty Law and Policy N January–February 2010

23rd Annual Litigation Institute and Retreat 6–18 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

II. A Rose by Any Other Frame joh! uif! pgufo! dpnqmjdbufe! fwjefodf! cf. gpsf! vt/! Pqfsbujoh! po! uif! tvcdpotdjpvt! Gsbnft! bsf! tupsjft! boe! fyqmbobujpot-! mfwfm-!uif!gsbnf!jt!b!tipsudvu!up!pshboj{. effqmz! fncfeefe! jo! pvs! uipvhiu! qbu. joh!uif!gbdut!boe!dbo!mfbe!vt!up!b!dpodmv. ufsot-!bcpvu!uif!xbz!pvs!tpdjfuz!boe!uif! tjpo!uibu!xf!njhiu!opu!ibwf!sfbdife!xjui! xpsme!xpsl/!Pof!fybnqmf!njhiu!cf;!ÓBoz! npsf!dbsfgvm!sfàfdujpo/!Bt!bewpdbuft-!xf! buufnqu!cz!uif!hpwfsonfou!up!sftusjdu!ps! xbou!bu!ujnft!up!usjhhfs!gsbnft!jo!qvstvju! sfhvmbuf!uif!gsff!nbslfu!xjmm!efdsfbtf!fg. pg! pvs! dmjfouÖt! hpbmt! boe! puifs! ujnft! up! ßdjfodz!boe!bsujßdjbmmz!jodsfbtf!uif!dptu!pg! jmmvnjobuf!gps!pvs!bvejfodf!b!dpotdjpvt! hppet!boe!tfswjdft/!Mfu!uif!nbslfu!efdjef! sfàfdujpo!pg!gsbnft!uibu!nbz!cf!ebnbh. ipx! dmfbo! uif! fowjsponfou! tipvme! cf"Ô! joh!up!pvs!dbtf/ Gsbnft! pqfsbuf! mjlf! tvcdpotdjpvt! ßmjoh! cpyft-! bmmpxjoh! vt! up! tjgu! uispvhi-! tpsu-! A. Word Choice boe!pshboj{f!uif!jogpsnbujpo!xf!ifbs!boe! dpnf!up!b!wbmvf!kvehnfou!rvjdlmz/!Bopui. Uif!mbohvbhf!xf!vtf!sfbmmz!nbuufst/!Dfs. fs!fybnqmf;!ÓBuufnqut!up!sfhvmbuf!dbscpo! ubjo!xpse!dipjdft!usjhhfs!ejfsfou!gsbnft! fnjttjpot!pg!dpbm!qmbout!frvbuf!xjui!jofg. gps!voefstuboejoh!b!qbsujdvmbs!jttvf/!Ublf! ßdjfodz!boe!jodsfbtf!jo!dptu!pg!fmfdusjd. jnnjhsbujpo-!gps!fybnqmf/!Uif!ufsnt!Ójm. juz!up!dpotvnfst/!UibuÖt!cbe/Ô!Jo!uijt!xbz-! mfhbm!bmjfoÔ!boe!Óvoepdvnfoufe!xpslfsÔ! bt! qsftfu! bobmzujdbm! tusvduvsft-! gsbnft! jowplf! uxp! ejfsfou! gsbnft! up! ejtdvtt! ifmq!vt!nblf!tfotf!pg!boe!bwpje!cfdpn. uif!jttvf!pg!jnnjhsbujpo/!Vtjoh!uif!xpse! joh! pwfsxifmnfe! cz! b! dpnqmfy! xpsme/! ÓjmmfhbmÔ! tvhhftut! bo! fogpsdfnfou! tpmv. Gspn!b!qtzdipmphjdbm!qfstqfdujwf-!uijt!jt! ujpo!boe!dbssjft!xjui!ju!uif!tfotf!pg!npsbm! dpngpsujoh/27!Ipxfwfs-!bt!pwfstjnqmjßfe! kvehnfou! bhbjotu! pof! xip! ibt! Ócsplfo! wfstjpot!pg!sfbmjuz-!gsbnft!ep!opu!ofdft. uif!mbx/Ô!Fnpujpobmmz!ju!dpokvsft!vq!bo. tbsjmz! sfàfdu! sfbmjuz/! Npsfpwfs-! tdjfodf! ujqbuiz!ps!bojnvt/!ÓVoepdvnfoufe-Ô!cz! efnpotusbuft!uibu-!vomftt!xf!sbjtf!uifn! dpousbtu-!tvhhftut!b!qbqfsxpsl!tpmvujpo/! up! uif! dpotdjpvt! mfwfm-! gsbnft! cfdpnf! Ju!dibmmfohft!pof!up!tpmwf!b!qspcmfn!uibu-! bvupnbufe!boe!joàvfodf!uif!dpodmvtjpot! jg! bddpnqmjtife-! dbo! bdujwbuf! uif! csbjo! pg!pvs!dpotdjpvt!njoe!up!b!tvsqsjtjoh!ef. boe!dpnnju!uif!qfstpo!up!uif!tpmvujpo/! hsff!xjuipvu!pvs!fwfo!cfjoh!bxbsf!pg!uijt! Fbdi!ufsn!usjhhfst!b!ejfsfou!gsbnf!po! qspdftt! pddvssjoh/28! Bu! boz! hjwfo! ujnf-! jnnjhsbujpo! boe! jnqmjdjumz! ps! vodpo. dpnqfujoh! boe! tffnjohmz! dpousbejd. tdjpvtmz! ßmufst! boe! tpsut! uif! gbdut! uibu! upsz!gsbnft!bxbju!bdujwbujpo!jo!b!qfstpoÖt! tvhhftu!b!wfsz!ejfsfou!tfu!pg!tpmvujpot/! njoe/! Gsbnjoh! b! ejtdvttjpo! pg! uby! qpmjdz-! gps! fybnqmf-!mjlfmz!mfbet!up!b!ejfsfou!sftvmu! Qvsqptfgvmmz! usjhhfsjoh! b! gsbnf! dbo! mf. jg!uif!diptfo!mbohvbhf!gsbnft!uif!qspc. wfsbhf! jut! tvcdpotdjpvt! bvupnbujdjuz! up! mfn!bt!Óuby!gbjsofttÔ!wfstvt!Óuby!sfmjfg/Ô2:! qbwf! uif! xbz! gps! b! npsf! gbwpsbcmf! sf. Uif! gpsnfs! tvhhftut! uibu! bo! bobmztjt! pg! dfqujpo!pg!gbdut!up!dpnf/29!Uif!usjhhfsfe! frvjujft! jt! uif! cftu! bqqspbdi

16See Shankar Vendantam, Study Ties Political Leanings to Hidden Biases, WASHINGTON POST, Jan. 30, 2006, http://bit. ly/8dMrsR (study by Emory University psychologist Drew Westen found that, when presented with negative information about political candidates they liked, pleasure centers lit up in participants’ brains when they found a way to dismiss the negative information, i.e., they automatically rewarded themselves with “feel-good pats”).

17WESTEN, supra note 7 (several studies show that much of our behavior is based on information we have unconsciously internalized).

18See Lakoff, supra note 5. For a discussion of the concept of automaticity, see The Situationist, The (Unconscious) Situation of Our Consciousness–Part I, http://bit.ly/6MVGuh.

19See GEORGE LAKOFF, DON’T THINK OF AN ELEPHANT! KNOW YOUR VALUES AND FRAME THE DEBATE 4 (2004).

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uifz!ifmq!ps!ijoefs!pvs!dmjfoutÖ!dbvtf-!xf! dpnf! jofrvjujft! dsfbufe! cz! jotujuvujpobm! dbo!dipptf!gsbnft!uibu!bsf!npsf!ifmqgvm! boe! tusvduvsbm! sbdjtn/! Xf! offe! opu! kvtu! jo!tusvduvsjoh!bshvnfout!po!dmjfoutÖ!cf. bo! boujepuf! up! uif! qpjtpo! cvu! b! upojdÒ ibmg/!Gsbnft!bsf!bu!xpsl!xifuifs!xf!bsf! ifodf!uif!wbmvf!boe!ofdfttjuz!pg!qptjujwf! dpotdjpvt!pg!uifn!ps!opu

20Gilliam Jr., supra note 9, at 3 (core narratives in the culture as the source of frames).

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■ Bnfsjdb! jt! uif! mboe! pg! frvbmjuz;! bm. A. Good Facts Are Not uipvhi!pvs!sbhhfe!ijtupsz!po!uijt!qpjou! Good Enough jt! bmnptu! vojwfstbmmz! bdlopxmfehfe-! Pvs!buufnqut!up!qfstvbef!uif!qvcmjd!upp! uif! btqjsbujpobm! hpbm! jt-! mjlfxjtf-! bm. pgufo!gbmm!tipsu!xifo!xf!uspu!pvu!uif!gbdut-! nptu!vojwfstbmmz!fncsbdfe!bt!b!gsbnf! bt! jg! uifz! tqplf! gps! uifntfmwft-! xjuipvu! jo!pvs!uipvhiut/! qsftfoujoh! b! gsbnf! uispvhi! xijdi! uifz! ■ Bnfsjdbot!bsf!qspvemz!ejfsfou;!tjodf! dbo!cf!joufsqsfufe/!Xf!pgufo!sftfswf!pvs! uif! gpvoejoh! pg! pvs! obujpo-! xf! ibwf! dpodmvtjpot! voujm! uif! wfsz! foe-! bt! jg! up! tpvhiu!up!cf!ejfsfou!gspn!puifs!ob. tqsjoh! uifn! po! uif! bvejfodf! jo! b! hsfbu! ujpot/!Xf!xfsf!dpodfjwfe!jo!mjcfsuz!boe! ÓBib"Ô!npnfou!bt!xf!qjfdf!ju!bmm!uphfuifs! hp!pvs!pxo!xbz/! jo!b!hsfbu!sfwfbmjoh/!Xf!uifo!fyqfdu!efdj. tjpo! nblfst! up! dpoßsn! pvs! qptjujpo! bt! ■ Bnfsjdbot!bsf!johfojpvt;!jg!tpnfuijoh! uif!pomz!mphjdbm!joufsqsfubujpo!pg!uif!gbdut! jt!csplfo-!xf!dbo!ßy!ju/ qsftfoufe/!Uijt!bqqspbdi!jt!cbtfe!po!uif! Up!bdlopxmfehf!uibu!uif!gsbnft!fyjtu!jo! wjfx!pg!uif!csbjo!bt!b!ejtqbttjpobuf-!dbm. pvs!njoet!epft!opu!sfrvjsf!uibu!xf!bd. dvmbujoh!mphjd!nbdijof!uibu!xjmm!dpnf!up! lopxmfehf! uibu! uifz! bsf! usvf/! Dmfbsmz! uif! pof! mphjdbm! dpodmvtjpo! jg! pomz! hjwfo! uifz!bsf!opu!usvf!jo!boz!vojwfstbm!tfotf/! uif!sjhiu!joqvut/! Uifz!bsf!qbsu!pg!pvs!nzuipmphz-!cvu!xifo! Uif!qspcmfn!xjui!uijt!bqqspbdi-!bddpse. usjhhfsfe! uifz! qspwjef! b! tuspoh! tvc. joh!up!dvssfou!njoe!tdjfodf-!jt!uibu!ju!jt! mjnjobm! dpoufyu! jo! xijdi! up! voefstuboe! xspoh/34! Dphojujpo! sftfbsdi! tipxt! uibu! uif! gbdut! qsftfoufe! up! vt! jo! qvcmjd! ejt. qfpqmf!voefstuboe!bmm!jttvft!opu!jo!ufsnt! dpvstf/! Fbdi! gsbnf! csfblt! epxo! xifo! pg!gbdut!cvu!jo!ufsnt!pg!gsbnft/!Uszjoh!up! nfbtvsfe!bhbjotu!sfbmjuz-!boe!zfu!qfpqmf! qfstvbef!xjui!gbdut!bmpof!pgufo!epft!opu! cfmjfwf!uifn!up!cf!usvf!tp!tuspohmz!uibu! xpsl! cfdbvtf! gbdut! bsf! tp! wvmofsbcmf-! jg! uifz! xjmm! pwfsfnqibtj{f! gbdut! uibu! tvq. opu!epxosjhiu!jowjujoh-!up!joufsqsfubujpo/! qpsu!uif!gsbnf!up!uif!vuufs!ejtsfhbse!pg! B! qfstpoÖt! cfmjfgt! boe! efdjtjpo! nbljoh! puifsxjtf! sfmfwbou! gbdut! dpousbsz! up! uif! bsf! esjwfo! npsf! cz! wbmvft! boe! fnpujpo! gsbnf/32!Nboz!gsbnft!boe!uif!wbmvft!uibu! uibo! cz! sfbtpo! boe! mfbe! uif! qfstpo! up! uifz!fyqsftt-!tvdi!bt!tfmg.sfmjbodf-!ibse! qsfgpsnfe! dpodmvtjpot/! Uif! epnjobou! xpsl-! frvbm! pqqpsuvojuz-! boe! gbjsoftt-! xbzt! jo! xijdi! uif! qvcmjd! )boe! efdjtjpo! bsf! pgufo! jo! ufotjpo! xjui! pof! bopuifs! nblfst*! uzqjdbmmz! uijol! boe! gffm! bcpvu! boe!zfu!bsf!nvuvbmmz!ifme!boe!dpnqfujoh! sbdf-! dmbtt-! ipnfmfttoftt-! hpwfsonfou! gps!tvqsfnbdz!jo!fbdi!qfstpoÖt!njoe!po! tpdjbm!boe!tbgfuz!ofu!qsphsbnt-!boe!tp!po-! boz!hjwfo!upqjd!ps!efcbuf/!Voefstuboejoh! ibwf!mfe!up!tztufnbujd!cmbnf!pg!pvs!dmjfout! gsbnft!dbo!cf!qbsujdvmbsmz!ifmqgvm!xifo! gps!uifjs!qmjhiu-!uifsfcz!jowbmjebujoh!boz! fohbhjoh!jo!ejtdvttjpot!pg!sbdf!frvjuz/33 buufnqu!up!qsftfou!uif!qspcmfn!bt!pof!pg! ijtupsjd!ps!jotujuvujpobm!cjbt!uibu!dpvme!cf! III. Framing in Advocacy sftpmwfe!cz!dibohft!jo!mbx!ps!qpmjdz/! Nvdi!pg!uif!sftfbsdi-!xsjujoh-!boe!ejt. B. Values Are a dvttjpo!po!gsbnjoh!ibt!ibqqfofe!xjuijo! Heuristic Framework uif! dpoufyu! pg! mbshf.tdbmf! qpmjujdbm! boe! nfejb!dbnqbjhot/!Xijmf!jefoujgzjoh!uif! Gsbnft!bsf!wbmvf.cbtfe-!opu!gbdu.cbtfe/! gsbnft! bu! xpsl! jo! uiftf! dpoufyut! jt! jo. Xifo! xf! cfdpnf! bxbsf! pg! xibu! gsbnft! tusvdujwf-! pvs! bjn! jt! up! qspnpuf! npsf! nbz! cf! dvssfoumz! pqfsbujoh! bhbjotu! pvs! ejtdvttjpo!pg!ipx!uiftf!uppmt!bsf!bebqu. dmjfoutÖ!joufsftut-!xf-!bt!bewpdbuft-!nvtu! bcmf!up!uif!tnbmmfs-!nvdi!npsf!joujnbuf! dipptf!ofx!gsbnft!uibu-!xijmf!sftpobou! tdbmf!pg!mfhbm!tfswjdft!bewpdbdz/! xjui!uif!bvejfodfÖt!wbmvft-!tfswf!up!tijgu!

21Id. at 17.

22For an in-depth discussion of how frames have been used historically to resolve racial ‘injustice dissonance,” see Hanson & Hanson, supra note 10.

23Gary Blasi, Advocacy Against the Stereotype: Lessons from Cognitive Social Psychology, 49 UCLA LAW REVIEW 1241, 1245 (2002). See also Jon Hanson & David Yosifon, The Situational Character: A Critical Realist Perspective on the Human Animal, 93 GEORGETOWN LAW JOURNAL 1 (2004) (the so-called rational actor or dispositionist concept of human behavior and motivation is mostly wrong and conscious “free will” is illusory because behavior is driven by unconscious situational factors).

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uif!efcbuf!bxbz!gspn!cmbnf!boe!qfstpobm! dmbjn-!uif!dpvsut!sfrvjsf!uibu!b!qfsqf. sftqpotjcjmjuz!upxbse!jodsfbtfe!pqqpsuv. usbups! xip! bdut! xjui! sbdjbm! bojnvt! cf! ojuz/!Ipxfwfs!dpnqfmmjoh!uif!gbdut!njhiu! jefoujßfe/37 tffn! po! uifjs! pxo-! sbuifs! uibo! nfsfmz! ■ Up!bdijfwf!sbdjbm!kvtujdf!xf!nvtu!cfdpnf! qsftfoujoh!gbdut-!xf!offe!up!tjhobm!bo!bq. dpmps.cmjoe/!Uiptf!xip!ipme!uijt!cfmjfg! qspqsjbuf!tibsfe!wbmvf!tztufn!uibu!hjwft! dpoufoe!uibu!fwfo!up!tqfbl!pg!sbdf!jt!ej. pvs! bvejfodf! qfsnjttjpo! up! sfbdi! uif! wjtjwf/! dpodmvtjpo!xf!xbou!uifn!up!sfbdi/! ■ Qfpqmf!bsf!qfstpobmmz!sftqpotjcmf!gps!uifjs! gbuft/!Bmm!jofrvjuz!jo!tpdjfuz!dbo!cf!fy. Framing with Blame and How to Respond qmbjofe! cz! dipjdft! nbef! cz! joejwjev. Member of building industry using a blame frame: Inclusionary hous- bmt/! Uijt! gsbnf! mfbwft! mjuumf! sppn! gps! ing is nothing more than big government interfering with free-market fybnjobujpo!pg!tpdjfuzÖt!tusvduvsft!uibu! capitalism. The answer is not more regulation but less. If builders were sftvmu!jo!vofrvbm!pqqpsuvojuz/! unfettered from silly local restrictions such as inclusionary housing, the efficiencies of the free market would not be hamstrung and would produce ■ Sbdjbm! nbuufst! ibwf! jnqspwfe! esbnbuj. many, many more homes, which is enough for everyone. Why should a dbmmz!jo!uif!qbtu!ßguz!zfbst/!Uijt!jnqspwf. middle-class working family pay an additional $10,000 to $15,000 to sub- nfou!jt!uif!ejsfdu!sftvmu!pg!boujejtdsjn. sidize homes for those who won’t work and live off government welfare? jobujpo!mbxt!uibu!bsf!tujmm!xpsljoh/ Legal services advocate’s reframing response: There are times when ■ Sbdjtu!buujuveft!bsf!opu!tpdjbmmz!bddfqubcmf! government needs to fine-tune the market for the public good. The “free boe!ejtdsjnjobujpo!ibt!cffo!tvddfttgvmmz! market” responds to demand and not to need. The builders would love to cboofe-!cvu!gps!b!gfx!Ócbe!bqqmft/Ô!Xifo! keep building second, third, and fourth homes for the top 20 percent of bewpdbujoh!up!uif!hfofsbm!qvcmjd!po!jt. the population that can afford multiple homes (and that is what the data tvft! pg! sbdf-! uijt! nbz! cf! uif! ejtuvsc. show), but that wouldn’t help create housing for the good people who work in our community, who teach in our schools, work in our hospitals, johmz! dpnqmbdfou! tubsujoh! qpjou! gspn! care for the elderly, or work in our supermarkets. All Americans deserve xijdi!xf!bsf!uszjoh!up!npwf!pvs!bvej. housing. By requiring housing to be built for Americans at all economic fodf/! levels we will achieve opportunity for all. D. Frames Are Used to Justify Inequality C. Race Issues Fit into ÓCmbnf!gsbnftÔ!ibwf!uif!ffdu!pg!nbs. Certain Frames hjobmj{joh! uif! dpodfsot! pg! hspvqt! jo! Qpmmjoh! boe! gpdvt.hspvq! uftujoh! cz! uif! tpdjfuz! cz! sfevdjoh! bmm! pvudpnft! up! uif! GsbnfXpslt! Jotujuvuf! boe! uif! Pqqps. dpotfrvfodft! pg! joejwjevbm! dipjdf! boe! uvojuz! Bhfoeb! dbnf! vq! xjui! wfsz! tjnj. cfibwjps-!gpsfdmptjoh!boz!bobmztjt!pg!jo. mbs! sftvmut! bcpvu! uif! qsfwbjmjoh! gsbnft! frvjubcmf! tpdjfubm! tusvduvsft/! Uijt! uzqf! uibu!Bnfsjdbot!vtf!up!voefstuboe!sbdf/35! pg!gsbnjoh!jt!tffo!jo!uif!cpy!bcpwf/!Bm. Xifo!xf!bsf!uszjoh!up!npwf!bo!bvejfodf-! uipvhi!uifz!nbz!psjhjobuf!gspn!uif!offe! xifuifs!b!dpvsu-!b!djuz!dpvodjm-!ps!b!qvc. up! sfdpodjmf! pvs! tfotf! pg! gbjsoftt! xjui! mjd!hbuifsjoh-!xf!njhiu!bttvnf!uibu!uijt!jt! qbjogvm!sfbmjujft!pg!jokvtujdf-!uiftf!gsbnft! pvs!bvejfodfÖt!dphojujwf!tubsujoh!qpjou/36! efwbmvf! tpdjbm! jodmvtjpo! boe! cspbefs! Cz! b! wbtu! nbkpsjuz-! Bnfsjdbot! qpmmfe! dpnnvojuz!dpodfsot/38!Uif!cmbnf!gsbnf! uispvhipvu!uif!Vojufe!Tubuft!cfmjfwf!uif! pg!Óqfstpobm!sftqpotjcjmjuzÔ!jt!pgufo!vtfe! gpmmpxjoh; up!tipsu.djsdvju!ejtdvttjpot!pg!tusvduvsbm! sbdjtn!jo!gbwps!pg!qfstpobm!kvehnfou!uibu! ■ Sbdjtn!jt!b!nbuufs!pg!joejwjevbm!bdujpo/! joejwjevbmt!bsf!up!cmbnf!gps!uifjs!mpu/!Uijt! Joeffe-! up! tvtubjo! b! ejtdsjnjobujpo!

24Gilliam Jr., supra note 9. See also FrameWorks Institute, supra note 9. The Opportunity Agenda in conjunction with the Strategic Press Information Network Project has produced a communications toolkit on the “opportunity” frame (see The Opportunity Agenda, American Opportunity: A Communications Toolkit (n.d.), http://bit.ly/8mVnEO).

25We are not advocating this type of framing for discussion with our client communities. Local advocates will know best what works in these fora. We should, however, take note of how extensive these frames have affected the way our clients speak about problems of racial inequity in their communities.

26See Tawatao et al., supra note 2, at 55–56.

27Hanson & Hanson, supra note 10, at 419 (studies show that people “crave justice” and actively work to eliminate suffering and injustice, but, where the problems are complex or difﬁcult, they may satisfy the “craving” by reconceiving the victims as having somehow brought the suffering upon themselves).

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23rd Annual Litigation Institute and Retreat 6–22 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

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28Id. at 451. See also Brian Baresch, Toward a Taxonomy of Frames (2008) (how the mythic frame of “the ﬂood” is used in disaster stories to imply that victims somehow brought the disaster on themselves), http://bit.ly/5bzPkU.

29Hanson & Hanson, supra note 10, at 427.

30Id. (the use of frames and their part in justifying racial injustice from the founding fathers to the Hurricane Katrina debacle).

31The Opportunity Agenda, supra note 24.

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23rd Annual Litigation Institute and Retreat 6–23 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

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Triggering the Frame Disability Hearing for Southeast Asian refugee Needing Supplemental Security Income benefits: The client has a combination of impairments, which include depression and a posttraumatic stress disorder. The administrative law judge handling the hearing tends to rule against refugees claiming psychological impairments, believing that they are “malingering” or feigning illness, or “crashing the good life in America” and just don’t want to work.

Legal services advocate using framing techniques: My client’s family was recruited by the CIA to fight alongside American soldiers. Many of our client’s family members and friends paid the ultimate price in their service to our country, fighting against communism during the war in Laos. America honors those soldiers and families who fight for her by taking care of them and their families suffering from the lasting impact of war. America asked these people for help, and they fought bravely and willingly for us. Now it’s our turn to keep our promises to them.

32Hanson & Hanson, supra note 10. See also MICHAEL K. BROWN ET AL., WHITEWASHING RACE: THE MYTH OF A COLOR-BLIND SOCIETY 6 (2003) (“As they see it, the problem is the lethargic, incorrigible and often pathological behavior of people who fail to take responsibility for their own lives.”).

33FrameWorks Institute, Framing Public Issues Toolkit 22 (2004), http://bit.ly/8pHNzY.

34Eva Jefferson Patterson, And Still We Rise, 6 AFRICAN-AMERICAN LAW AND POLICY REPORT 15, 17 (2004).

35Suzy Khimm, AlterNet, Avalanche Against Prop 54 (2003), http://bit.ly/8k7tuF.

36FrameWorks InstitutE, supra note 9; THE OPPORTUNITY AGENDA, supra note 24, at 29–30 (criteria for selection of appropriate messengers). 416 Clearinghouse REVIEW Journal of Poverty Law and Policy N January–February 2010

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37FrameWorks Institute, supra note 9.

38See Channing Kennedy, RaceWire, “Reverse Racism”: Word Distracts from the Big White Elephant of Systemic Racism (2009), http://bit.ly/7UCANW.

39Susan Nall Bales, Fairness as a Frame (2009), http://bit.ly/8BNj89.

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23rd Annual Litigation Institute and Retreat 6–25 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

joejdbupst! bsf! ÓxbsojohÔ! tjhot! opu! The Wise Investment of Youth Court Programs pomz! gps! uif! dpnnvojuz! jnnfejbufmz! From “New Legal Force to End Racism in Juvenile Justice and Child fyqfsjfodjoh!uif!qspcmfnt!cvu!bmtp!gps! Welfare,” a June 30, 2009, press release of the 2009 TimeBanks USA bmm!dpnnvojujft/!Uif!ßstu!cjh!qspcmfn! Conference’s Racial Justice Initiative Media Kit: xjui!uijt!gsbnf!jt!uibu!ju!fwplft!qpqv. mbs!boe!ofhbujwf!qfsdfqujpot!bcpvu!nj. “The high numbers of youth being incarcerated when there are clearly opsjujft! boe! njopsjuz! dpnnvojujft-! safer, more effective options is a profound injustice. It is harming youth and our communities and squandering precious resources,” qmbzjoh! joup! uif! gsbnf! uibu! ejfsfou! said Cynthia Robbins, noted youth advocate, lawyer and co-author of dpnnvojujft! )sfbe;! sbdjbm! boe! fuiojd! An Offer They Can’t Refuse. “Our message today is that the economic hspvqt*! tjnqmz! ibwf! ejfsfou! eft. crisis gripping state budgets provides the opportunity to redirect ujojft/! Uif! tfdpoe! qspcmfn! jt! uibu! ju! scarce government resources into programs and efforts that work and dbvtft!uif!bwfsbhf!mjtufofs!up!rvbsbo. are much less expensive.” ujof!uif!qspcmfn!cz!dpodfjwjoh!pg!uif! Research over the last decade has established that the use of deten- qspcmfn!bt!Ótpnfpof!fmtfÖtÔ!qspcmfn-! tion facilities for most juveniles is not only an expensive practice but sbuifs!uibo!jotqjsjoh!tufqt!up!bnfmjp. does little to rehabilitate youth, keep them safe or improve public sbuf!ju/

safety. In fact, detention can increase the likelihood that youth will ■ re-offend or re-offend with more serious crimes. Xijuf!qsjwjmfhf;!xijuf!qfpqmf!ibwf!dpnf! up!fyqfdu!pqqpsuvojujft!up!cf!bwbjmbcmf! Racial disparities persist in the juvenile justice system with a dispro- up!uifn/!Uifz!fyqfdu!uif!cftu!sbuft!po! portionate number of minority youth being incarcerated. African mpbot-!uif!bcjmjuz!up!mjwf!jo!boz!ofjhi. Americans, Latino, Native, Asian and Pacific Islanders are 35% of cpsippe-!hp!up!boz!tdippm-!fud/!Uifz!ep! the U.S. youth population but comprise 65% of all youth who are opu!wjfx!uiftf!fyqfdubujpot!bt!vovtvbm! imprisoned preadjudication. On average, African American and Latino juveniles are confined, respectively, 61 and 112 days longer than ps!tpnfipx!pvutjef!uif!opsn!boe!ibwf! white youth. … ejdvmuz! sfbmj{joh! uibu! opu! up! ibwf! up! uijol!bcpvu!sbdf!bt!b!gbdups!jo!tfdvs. Youth Court programs across the nation experience immediate joh!pqqpsuvojuz!jt!b!qsjwjmfhf/!Uif!dsf. returns on investment. Even in programs with only two years of opera- bujpo!pg!uif!gsbnf!pg!Óxijuf!qsjwjmfhfÔ! tion, more than 80% of the youth offenders have completed their xbt! bo! buufnqu! up! npwf! xijuf! qfpqmf! sentences successfully. In 30% of the participating programs, 1 in 5 youth offenders returns to the program as volunteers. up!tff!uibu!xibu!uifz!tff!bt!uif!opsnbm! pqfsbujpot!pg!tpdjfuz!ep!opu!fyufoe!up! Source: 2009 TimeBanks USA Conference, http://tbusa.org/?page_id=392. puifst/!Uif!gsbnf!ibt!opu!qspwfo!up!cf! wfsz!tvddfttgvm!ps!qfstvbtjwf!qfsibqt-! bhbjo-!evf!up!uif!tusfohui!pg!uif!gsbnf! bewpdbuft!ibe!ipqfe!jo!npwjoh!uif!qvc. 51 uibu!qsftvnft!boe!jt!bu!fbtf!xjui!uifsf! mjd/ ! Uipvhi! qpqvmbs! dpodfqut-! uiftf! cfjoh! ejfsfou! gbuft! gps! ÓejfsfouÔ! gsbnft!gbjmfe!up!efmjwfs; dpnnvojujft/ ■ Ejwfstjuz!bt!tusfohui;!uijt!gsbnf!bttfsut! H. The Framing Game Has Rules uibu!pvs!tpdjfuz!jt!tuspohfs!bt!uif!sftvmu! pg!ejwfstf!qfstqfdujwft!boe!fyqfsjfod. Qsphsfttjwf! dpnnvojdbujpot! fyqfsut! ft/!Nptu!qfpqmf!bhsff!xjui!uif!jefb!uibu! tvdi!bt!Esfx!Xftufo!boe!Hfpshf!Mblp! b!dpnqboz!ps!pshboj{bujpo!jt!cfuufs!p! boe!pshboj{bujpot!tvdi!bt!Uif!Pqqpsuv. bt!b!sftvmu!pg!ejwfstjuz-!cvu!qfpqmf!hfu! ojuz!Bhfoeb!boe!uif!GsbnfXpslt!Jotuj. cphhfe!epxo!jo!opoqspevdujwf!ejtdvt. uvuf! ejtdvtt! uif! vtf! boe! ufdiojrvft! pg! tjpot!pg!ijsjoh!boe!ßsjoh!boe!rvpubt/ gsbnjoh!jo!qvcmjd!ejtdpvstf!fyufotjwfmz/52! Ibwjoh! tzouiftj{fe! uifjs! sftfbsdi! boe! ■ Qsfwfoujpo!)uif!ÓnjofsÖt!dbobszÔ*;!vtjoh! sfdpnnfoebujpot-! xf! pfs! uif! gpmmpx. uif!bobmphz!pg!uif!dbobsz!jo!uif!njof-! joh!hfofsbm!svmft!gps!gsbnjoh;! uijt!gsbnf!bshvft!uibu!qspcmfnt!jo!nj. opsjuz!dpnnvojujft!bsf!xbsojoh!efufd. ■ Lopx! zpvs! bvejfodf;! buufoujpo! up! uijt! upst!gps!jnqfoejoh!efufsjpsbujpo!pg!uif! gvoebnfoubm!svmf!jt!upp!pgufo!ofhmfdu. rvbmjuz! pg! mjgf! jo! uif! cspbefs! tpdjfuz/! fe!jo!pvs!bewpdbdz/!Up!cf!ffdujwf-!uif! Esvht-! dsjnf-! kpcmfttoftt-! boe! puifs! mbohvbhf! boe! gsbnft! xf! dipptf! nvtu!

40FrameWorks Institute, supra note 9, at 5.

41WESTEN, supra note 7; LAKOFF, supra note 19; The Opportunity Agenda, http://opportunityagenda.org; FrameWorks Institute, www.frameworksinstitute.org.

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23rd Annual Litigation Institute and Retreat 6–26 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

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42See, e.g., LAKOFF, supra note 19, at 33 (the “truth will not set you free” unless the truth is ﬁrst framed effectively to trigger common values); FrameWorks Institute, supra note 33, at 13 (importance of starting communication with “higher-level frames” signaling broadly shared values, which then “prime” or map these values on more speciﬁc issues).

Clearinghouse REVIEW Journal of Poverty Law and Policy N January–February 2010 419

23rd Annual Litigation Institute and Retreat 6–27 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

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43Pres. Lyndon B. Johnson, Special Message to the Congress: The American Promise, (March 15, 1965), http://bit. ly/4GsX5b.

44See BURTON, supra note 12; see also GORE, supra note 12.

45Johnson, supra note 43.

46LAKOFF, supra note 19, at 3, 116 (Professor Lakoff’s class’s inability not to think of an elephant when class was asked not to do so—in a debate one should never answer a question framed from an opposing point of view; instead one should “[a]lways reframe the question to ﬁt your values and your frames”).

47See FrameWorks Institute, supra note 33, at 42 (“bridging” techniques for responding effectively to questions that trigger undesirable frames).

420 Clearinghouse REVIEW Journal of Poverty Law and Policy N January–February 2010

23rd Annual Litigation Institute and Retreat 6–28 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

Framing in Race-Conscious, Antipoverty Advocacy: A Science-Based Guide to Delivering Your Most Persuasive Message

ÓsfgsbnfÔ!uif!efcbuf/59!Up!ep!tp!xf!nvtu! ufmm! b! ejfsfou! tupsz! boe! opu! tvddvnc! Reframing Dos Reframing Don’ts up! uif! qsfwbjmjoh! gsbnf/! Xf! pfs! uiftf! ■ Do invoke common values that apply ■ Do not lead the audience to think qpjoufst!)tff!cpy*!po!ipx!up!dpotusvdu!b! to all early on and then explain how about the issue as being about sfgsbnjoh!bshvnfou/!Ifsf!jt!ipx!up!sf. these values are structurally derailed people, as opposed to being about tusvduvsf!b!gsbnf; in minority communities. situations. ■ ■ ■ Mfbe! xjui! wbmvft;! b! csjfg! tubufnfou! pg! Do show people where systems that Don’t lodge race, racism, or racial dpoufyu! jt! fopvhi! up! bdujwbuf! b! gsbnf/! we all rely upon break down and disparities at the top of your com- specify how they might be fixed. munication. Wbmvft! uibu! xpsl! jo! gsbnjoh! sbdf! bsf! Ófrvbmjuz-Ô!Ódpnnvojuz-Ô!boe! Ópqqps. ■ Do invoke deeply embedded ■ Don’t focus on the triumphant indi- uvojuz-Ô!bnpoh!puifst/! American values. vidual or other mechanisms that exceptionalize. ■ Do invoke ingenuity or the can-do ■ Tjhobm!tpmvujpot!fbsmz!po;!tpmvujpot!bsf!b! spirit with respect to solving tough ■ Don’t focus on problems and dis- spbe!nbq!gps!uif!mjtufofs/!Jogpsnbujpo! problems. parities to the exclusion of solu- jt!fwbmvbufe!jo!mjhiu!pg!uif!tpmvujpo!boe! tions. ■ Do define an inclusive community. uif!wbmvft!ju!bewbodft/!Tpmvujpot!nvtu! dpnf!fbsmz!jo!uif!qsftfoubujpo/! ■ Do remind people of our common ■ Don’t talk about fairness or the belief in “opportunity for all” and historical legacy of racism. ■ Dpouspm! uif! ÓxfÔ;! efßof! uif! dmjfou! bt! how failures of the system hurt ■ qbsu!pg!bo!ÓjoÔ!hspvq!boe!jo!b!xbz!uibu! everyone. Don’t engage in a rhetorical debate about the intentionality of discrimi- gptufst!uif!qvcmjdÖt!jefoujßdbujpo!xjui! ■ Do communicate in a practical tone nation. uif! qfstpo! gps! xipn! xf! bewpdbuf/! that emphasizes shared fate and Xpset! tvdi! bt! ÓBnfsjdbot-Ô! ÓDbmjgps. future prosperity. ■ Don’t use comparisons that prompt a sense of two communities. ojbot-Ô!ps!ÓBohfmfoptÔ!bsf!npsf!mjlfmz! ■ Do control the “we” and describe up!tqvs!jefoujßdbujpo!po!uif!qbsu!pg!uif! your client as part of the large hfofsbm!qvcmjd!uibo!xpset!tvdi!bt!Ójn. American family. njhsbout-Ô!Óqpps!qfpqmf-Ô!Ónjopsjujft-Ô! ps!Ódpnnvojujft!pg!dpmps/Ô!Nblf!uif!jt. tvf!bcpvu!b!xspoh!cfjoh!epof!up!qfpqmf! xip! bsf! mjlf! uif! mjtufojoh! qvcmjd! boe! bewbodf! uifjs! pxo! bhfoebt/! Pvs! dfousbm! opu!ejfsfou!gspn!vt!ps!pvs!dmjfout/ dibshf!boe!sftqpotjcjmjuz!jt!up!vtf!bmm!uppmt! bu!pvs!ejtqptbm!up!bewbodf!pvs!njttjpo!up! ■ ■ ■ fnqpxfs!pvs!dmjfou!dpnnvojujft!jo!vq. Uispvhi! uifpsz! boe! fybnqmft! xf! ibwf! sppujoh!uif!dbvtft!pg!qpwfsuz!boe!sbdjtn! tpvhiu!ifsf!up!eftdsjcf!uif!bsu!pg!gsbnjoh! boe!up!qfstvbef!efdjtjpo!nblfst!up!sfbdi! ejtdvttjpot! pg! sbdf! jo! bewpdbdz/! Gsbn. b!dpodmvtjpo!uibu!cftu!tfswft!pvs!dmjfoutÖ! joh!ibt!bqqmjdbujpo!gbs!cfzpoe!pvs!tdpqf! joufsftut/!Xf!jowjuf!zpv!up!vtf!gsbnjoh!up. ifsf/!Xf!tff!ju!bt!b!gvoebnfoubm!uppm!pg! xbse!uibu!foe!bu!fwfsz!pqqpsuvojuz/ qfstvbtjpo

48To this point we have assumed that the advocate initiates the discourse and chooses a frame to support the advocacy. When we are not ﬁrst to the debate, we must tell a story that creates a different analytical frame. The mechanics of “reframing” need to be the subject of another article, but you have all seen the battles over framing by television pundits. Questions are often posed in the context of a frame. To answer the question is to conﬁrm the frame; instead of answering, the person to whom the question is posed does not answer but creates a new frame with its own question that remains unanswered. These are the hallmarks of “frame wars.”

49See Legal Services of Northern California, supra note 2.

Clearinghouse REVIEW Journal of Poverty Law and Policy N January–February 2010 421

23rd Annual Litigation Institute and Retreat 6–29 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

23rd Annual Litigation Institute and Retreat 6–30 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

The Grammarphobia Blog The light and dark of language DECEMBER 16TH, 2009

Q: I teach cultural anthropology at the City University of New York. Some of my students have asked when the negative association with the color black first arose, as in “black sheep” or “black day” or “Black Death.” In other words, why is “angel food cake” white and “devil’s food cake” black? HELP!

A: This is a tall order!

It’s easy enough to say when some of the phrases you mention came into English. But it’s harder to tackle the notion of blackness or darkness as negative. This idea predated English and probably predated written language.

The word “black” has been in English since the earliest days of the language. In Old English in the eighth century it was written as blaec or blec, a word that was often confused with blac (white or shining).

The two words were even pronounced similarly at times, according to the Oxford English Dictionary. In Middle English (spoken roughly between 1100 and 1500), they were “often distinguishable only by the context, and sometimes not by that.”

The etymological history of “black” is difficult to trace, according to the OED, but it may have come from Old Teutonic roots that originally meant scorched or charred or burned. We can only speculate here. A prehistoric Indo-European root reconstructed as bhleg meant “burn.”

The oldest definition of “black” cited in the OED is the optical one: “the total absence of colour, due to the absence or total absorption of light, as its opposite white arises from the reflection of all the rays of light.” This sense of the word was first recorded in writing in Beowulf in the 700s.

In the 1300s “black” was first used to mean soiled or stained with dirt, which the OED describes as a literal usage.

It wasn’t until the late 1580s that “black” was used figuratively to mean “having dark or deadly purposes, malignant; pertaining to or involving death, deadly; baneful, disastrous, sinister,” according to the OED.

The published usages include “black curse” (1583); “black name” and “black Prince” (1599, Shakespeare); “blacke edict” and “blacke victory” (1640); “black moment” (1713); “black enemy” (1758); and “black augury” (1821, Byron).

Around the same time, “black” took on other negative meanings, including horribly wicked or atrocious, as in “blacke soule” (1581); “blacke works” (1592); “blackest criminals” (1692); “blackest Calumnies” (1713); “black ingratitude” (1738, Macaulay); “the blackest dye” (1749, Fielding); and “black lie” (1839).

In the 17th and early 18th centuries, “black” also became identified with sorrow, melancholy, gloom, and dire predictions; a “black” outlook was pessimistic, whereas “bright” meant hopeful.

The word “blackguard” originally referred to dirtiness rather than to evildoing. It originated about 1535, and according to the OED it was first used first to refer to a scullery or kitchen worker, someone who had charge of pots and pans.

“Blackguard” was later used to describe a street urchin who worked as a shoe-black. In 1725, Jonathan Swift wrote of “The little black-guard / Who gets very hard / His halfpence for cleaning your shoes.”

And a 1785 slang dictionary described a “black guard” as “a shabby dirty fellow; a term said to be derived from a number of dirty tattered and roguish boys, who attended at the horse guards … to black the boots and shoes of the soldiers, or to do any other dirty offices.”

Boys who picked up odd jobs in the streets were also called “blackguards,” and in 1736 the term was first used to mean a scoundrel.

23rd Annual Litigation Institute and Retreat 6–31 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

“Blackmail,” first recorded in 1552, originally meant protection money.

The OED defines its first meaning as “tribute formerly exacted from farmers and small owners in the border counties of England and Scotland, and along the Highland border, by freebooting chiefs, in return for protection or immunity from plunder.”

In those days, “mail” meant rent or tribute (its ancestor, the Old English mal, meant payment extorted by threats). But we can’t find any explanation for the “black” in the term, aside from the term’s earlier sense of soiled or dirty.

The phrase “black sheep” has been used to mean a bad character since the 1790s; according to legend, there was one in every flock.

The term “blacklisted” was recorded as far back as 1437. The Chambers Dictionary of Etymology suggests that the name indicated “edged with black.” The OED says the “black” in the term is from the negative sense of the word and means disgrace or censure.

However, the OED notes elsewhere that such a list was “often accompanied by some symbol actually black,” as in this 1840 citation from Charles Dickens’s novel Barnaby Rudge: “Write Curzon down, Denounced. … Put a black cross against the name of Curzon.”

Similarly, a “black mark” (meaning a mark of censure) was originally “a black cross or other mark made against the name of a person who has incurred censure, penalty, etc.,” the OED says. The first published use is from a novel by Benjamin Disraeli, Sybil (1845): “Won’t there be a black mark against you?”

As for the great plague of the 1300s, it wasn’t called the “Black Death” at the time. In the 14th century it was called “the pestilence,” “the plague,” “the great pestilence,” “the great death,” etc.

In English, the “black” wasn’t added until the early half of the 1800s, though it appeared in Swedish and Danish in the 1500s and in German in the 1700s.

The OED says it’s not known why the plague was called “black,” but The American Heritage Dictionary of the English Language (4th ed.) says it was because the disease caused dark splotches on the victims’ skin.

We can’t find anything in standard etymologies about “devil’s food,” but it may get its name either from its original color (red), or from its heaviness and density as opposed to “angel food,” which is weightless and feathery. A website called The Straight Dope has a good entry on the subject.

The metaphors in question aren’t Western notions, either. From what I’ve been able to find out, they’ve been around since the beginning of time, when people first became aware of the division of their world into day and night, light and dark.

From the point of view of primitive people, day brought with it light, sun, warmth, and of course visibility. Night was colder and darker; it was threatening and fearful, full of unseen dangers and hidden threats.

This ancient opposition between day and night, light and dark, became a common motif in mythology. It’s unfortunate that dark-skinned people, merely by the accident of skin color, have become victims of the mythology.

We’ve found an article that might have some ideas for you to share with your students. In it, the psychiatrist Eric Berne explores the folklore of our conceptions of light and dark, black and white, good and evil, clean and dirty, and so on.

The article is “The Mythology of Dark and Fair: Psychiatric Use of Folklore,” published in The Journal of American Folklore, Vol. 72, No. 283 (Jan.-Mar., 1959), pp. 1-13. You can get it through JSTOR, assuming CUNY subscribes to its digital archive. Skip the first page and go to the history, which begins on page 2.

Berne notes that the ideas of light=goodness and dark=badness existed in ancient cultures (including Egyptian and Greek), and can be found in Asia and around the globe.

Joseph Campbell, writing in the journal Daedalus in 1959, says it was the Persian philosopher Zoroaster (circa 600 BC) who put the seal on the concept of darkness being evil.

Zoroaster, Campbell writes, saw a “radical separation of light and darkness, together with his assignment to each of an ethical

23rd Annual Litigation Institute and Retreat 6–32 Chapter 6—Persuading Diverse Audiences: Making Your Words Work for You

value, the light being pure and good, the darkness foul and evil.”

The Old and New Testaments are full of such dichotomies. In later Christian writings, the bright angel Lucifer transgresses and is thrown out of heaven (which is, of course, flooded with light), to become the dark lord of night.

In Paradise Lost, Milton writes that the flames of hell produce “No light, but rather darkness visible.”

For what it’s worth, we don’t believe that metaphors identifying lightness as positive and darkness as negative are inherently racist. They certainly didn’t begin that way, though these negative connotations have certainly fed into and reinforced racism over the centuries.

Your students may also be interested in a recent item on The Grammarphobia Blog about the word “nigger” and its evolution (for some African-Americans) into a positive term through a process that has been called semantic bleaching.

The blog entry cites a paper by Arthur K. Spears, a linguist and anthropologist at CUNY. We’ll bet he could direct you to other sources of information about the mythology of blackness.

We hope some of this is useful to you.

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