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Ethics

Lawyers ordered to provide door-to-door apology after their early-morning ‘scream test’

By Debra Cassens Weiss

October 14, 2024, 11:27 am CDT

Lawyers who wakened South Philadelphia residents with a looped recording of a screaming woman to prove a point in a lawsuit must go door to door to issue in-person apologies, a federal judge has ruled.

In an Oct. 10 opinion, U.S. District Judge John F. Murphy of the Eastern District of Pennsylvania said lawyers for former inmate Termaine Hicks will have to mail written apologies to nearby residents. At least one lawyer will have to go door to door to apologize to those living closest to the recording.

Law.com and Law360 have coverage, while Courthouse News Service published a brief summary and linked to the decision by Murphy.

The 122-decibel recording broadcast for more than an hour beginning at 5:30 a.m. Sept. 23. That volume is “somewhere on the border between uncomfortable and painful and is similar to an ambulance siren, a rock concert or a chainsaw,” Murphy wrote.

Hicks was suing several police officers and the city of Philadelphia for allegedly framing him for a rape. He was imprisoned for 19 years until his conviction was vacated in December 2020.

Hicks had claimed that he heard a woman screaming in the early-morning hours of Nov. 27, 2001, and he went to help. She had been sexually assaulted and was lying on the ground.

According to Hicks, police arrived, shot him three times in the back and planted a gun to frame him for the crime. One issue is whether Hicks could have heard the woman screaming from two blocks away.

Lawyers for the defendants had tried to show that Hicks didn’t hear the screams by hiring an acoustics expert who played a “siren chirp” in the neighborhood. Attorneys for Hicks retained an expert who devised a “scream test.”

The plaintiff’s attorneys had been instructed not to speak directly to city employees and had assumed that the defendants’ counsel would contact police and take necessary precautions.

Police were notified.

“What is clear is that no one provided community members with notice of the scream test,” wrote Murphy, who also had no notice of the plan.

Lawyers for the plaintiffs acknowledged that “residents were clearly upset,” Murphy said. One man came over with a baseball bat. A woman yelled at the acoustics expert. Many wanted to know who was responsible for the recorded scream and asked whom they could contact to complain.

“At best, this lack of forethought and sensitive judgment resulted in a deeply disturbing and potentially dangerous situation,” Murphy wrote. “At worst, it undermined the local community’s confidence in the exact justice system that Mr. Hicks relies on for recourse.”

Murphy decided against withholding the “scream test” evidence as a sanction, citing three reasons. The plaintiff’s counsel did not act maliciously, there is no apparent prejudice to the defendants, and banning the evidence “would have misplaced effects,” Murphy said.

“Such an action would benefit defense counsel, who were present for the scream test and at least complicit in allowing the test to move forward,” he said.

Lawyer Emma Freudenberger of the law firm Neufeld Scheck Brustin Hoffmann & Freudenberger took personal responsibility for what happened, Murphy said in a footnote. The judge allowed any lawyer for the plaintiffs to conduct the in-person apologies, however.

Law360 reported that two firms represented the plaintiff. The second is Kairys Rudovsky Messing Feinberg & Lin. Freudenberger and other lawyers for the firms did not immediately reply to an ABA Journal email seeking comment.

The case is Hicks v. City of Philadelphia.

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3. Some taking California bar exam say Cow Palace…

Bar Exam

Some taking California bar exam say Cow Palace venue was so cold it may have affected their test results

By Debra Cassens Weiss

February 29, 2024, 10:02 am CST

The State Bar of California’s decision to consolidate some bar exam locations at the Cow Palace in Daly City, California, didn’t work out well for test-takers who say the place was so cold Tuesday that it affected their ability to function.

“I was so cold in the morning I almost couldn’t type my fingers were so freezing,” wrote one test-taker on Reddit.

Reuters and ABC7 News had stories on the complaints about the Cow Palace venue, which is typically used for livestock shows, sporting events and concerts.

Deborah Tharp told Reuters that she had muscle cramps from the cold temperatures.

“I could see my breath when I first arrived,” she said.

Brenden Bargmann, another test-taker, told ABC7 News that he was shivering, despite wearing flannel and a jacket. The conditions aren’t what you would expect in a professional environment, he said, never mind that this is the “most important test that we are ever going to take, [and] we are spending thousands of dollars.”

The State Bar of California voted in January to return to the Oakland Convention Center for the July 2024 exam, according to Reuters.

ABC7 News posted this statement from the State Bar of California on Wednesday: “State bar staff remain in constant communication with Cow Palace facility management, who are on alert to ensure that they can strike the right temperature balance. While yesterday started cold for some applicants at the Cow Palace, by the end of the day yesterday, some applicants found it too warm. On-site staff and facility management are working together to resolve these issues as quickly as possible.”

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3. As ABA gathers more information on JD-Next,…

Legal Education

As ABA gathers more information on JD-Next, law schools still have to obtain variances to use test

By Debra Cassens Weiss

February 26, 2024, 11:43 am CST

Law schools that want to use the JD-Next exam in admissions will have to continue to seek a variance, the council of the ABA Section of Legal Education and Admissions to the Bar determined at its Feb. 22 meeting.

The council wants to gather more data before deciding whether the test, a prelaw school exam administered by Aspen Publishing, is valid and reliable, as required by ABA accreditation standards.

Reuters and Law.com have coverage.

The council vote follows a consultant’s report that said JD-Next should only be used “as a lightly weighted addition” to acceptance decisions. More traditional measures of a student’s likely law school success, such as undergraduate grades or more established tests, should carry the weight of acceptance decisions, the report said.

“The JD-Next exam is a reliable and valid predictor of early law school grades but with multiple cautions and caveats that cannot be evaluated with the present data and may represent threats to its validity if used operationally for high-stakes decisions,” said the report by the ABA-commissioned consultant, Nathan Kuncel, an industrial organizational psychology professor at the University of Minnesota.

Fifty-one law schools have already received variances to use the test, according to Daniel Thies, vice-chair of the council, who spoke with Law.com.

The Law School Admission Council, which administers the Law School Admission Test, told Law.com in a statement that it supports “the council’s decision that the JD-Next exam should not be considered a valid and reliable test without far more evidence and resolution of the issues surrounding accommodations for people with disabilities.”

David Klieger, the program director for Aspen Publishing, said in a statement the council’s decision not to grant full approval is disappointing.

“We are incredibly proud of the JD-Next program and its results to date,” Klieger said in a statement published by Law.com. “We take pride in the fact that [many] institutions have already adopted the program, demonstrating their commitment to innovation and equity in the admissions process.”