If you play football at Nebraska, don’t kill a raccoon with a wrench after it bites you in the leg even if you fear it might be rabid because, in return, PETA will chew your ass

I can’t make this stuff up. See here. The Lincoln paper’s headline screams, “PETA calls for punishment, training after Husker player kills raccoon.”

In part, the story recounts the saga this way,

Huskers defensive end Jack Gangwish was driving his pickup north of town on Dec. 3 when spotted a raccoon in the road and decided to take a photo of himself with the animal.

The raccoon wasn’t as keen on the idea and bit 21-year-old Gangwish in the calf.

“It was a raccoon selfie gone completely wrong,” he said later.

Gangwish said he thought the raccoon should be tested for rabies, so he grabbed a wrench with the aim of subduing it.

“It was death by crescent wrench,” said the 6-foot-2, 260-pound Gangwish, who later tweeted that he did not have rabies.

Wild animals account for 90 percent of rabies cases in the United States, and raccoons make up almost half of those, according to the website of the Centers for Disease Control and Prevention. There were about 6,200 cases of animal infection and one case of human infection in 2012.

On Wednesday, Gangwish said his wound was doing OK and declined further comment.

In her letter to Eichorst, PETA President Ingrid Newkirk said, “No animal deserves to be bludgeoned to death, and cruelty is not acceptable under the law. It’s time for acts of cruelty to animals committed by players to be taken extremely seriously, and with violence in football culture now under the microscope, this is the time to address the issue.”

Trigger warning: I next write figuratively and not literally:  I love all creatures great and small, but this asinine complaint makes me want to beat PETA with a wrench.


Football is dead and so are civil jury trials in the federal courts

I love football.  Living in Nebraska, how could I not.  I played the sport and so did my son.*  But, John Klass, in a beautifully written piece for the Chicago Tribune, tells us that football is as “dead as the Marlboro Man.”    Although I don’t like it, Klass is almost certainly correct.   The sport is being killed by soccer moms who sensibly prefer not have their male children undertake the significant risk of traumatic brain injury.

The death of football got me thinking about civil jury trials in the federal courts.  It used to be that we thought of civil jury trials, particularly in the federal courts, in iconic terms.  The absolute best lawyers asking citizen jurors to resolve significant disputes about important things.  No more.  You can check the statistics, but a civil jury trial in federal court is now a rare phenomena.  See WSJ Blogs, Why Have Federal Civil Jury Trials Basically Disappeared (September 21, 2010).

Why is this so?  Well, blame the soccer moms.   Thoughtful adults realize, correctly, that civil jury trials stink when it comes to resolving disputes in an efficient manner.  In the federal courts that is particularly true.  Among other things, our system encourages the expenditure of huge sums of money preparing a case for trial.  So, just as no soccer mom will allow her kid to strap on a helmet, no sensible person will throw away huge sums money for the opportunity to wager their fortunes before a federal jury when there are demonstrably better ways of resolving disputes.  Arbitration, mediation and rent-a-judge programs are much less costly and far more predictable.

While I lament the coming death of football, I am much less concerned with the death of civil jury trials in the federal courts.  Frankly, I was never much of a fan anyway.  In any event, the culture has shifted against civil jury trials (and the lawyers who try them) and there is nothing we can do about it.   While criminal jury trials will persist, the next generation of federal trials judges will look back at civil jury trials as a quaint but unbelievably expensive and inefficient anachronism.

That’s life in the Big Ten.


*Boyo’s high school team won the large-class state championship in Memorial Stadium (where the Huskers play).  Seeing his image on the big screen has been one of the highlights of my life.  Unfortunately, I think the kid got too many dings to the head.  He moved to Australia, got his PhD and became an academic.

“In Cold Storage, Sex and Murder on the Plains” by James W. Hewitt

James W. Hewitt (Jim) is my very good friend. Indeed, he held my hand, and gave me solid advice when I went through the vetting process to become a federal district judge. Jim had served as a distinguished member of the American Bar Association’s Standing Committee on the Federal Judiciary. In fact, he served in that capacity during the confirmation hearings of Judge Robert Bork. See Mary Thornton, The ABA’s Judgments on JudgesWashington Post (September 25, 1987). I only disclose this relationship so the reader understands that my review of Jim’s recent book, which I will get to in a minute, may not be entirely objective. In short, I have enormous respect and affection for Jim.

That Jim took pity upon and helped a terrified 45-year-old federal Magistrate Judge become a federal District Judge is not the only reason Jim garners my respect and the respect of many others. Jim is a tall and big-boned man consistent with his football playing days at Hastings College. He has a voice that trial lawyers (which Jim once was) would kill for. He graduated from the University of Nebraska College of Law around 1956 and promptly became a legal luminary in Nebraska.

Jim was recognized as the Nebraska State Bar Foundation’s Outstanding Legal Educator. The award is given in recognition of significant contributions to the field of legal education by a legal educator or lawyer who serves in continuing legal education capacities. Having retired from the active practice of law, Hewitt taught American History and Constitutional Law at Nebraska Wesleyan University. Hewitt earned a master’s degree and Ph.D. in American Legal History after 35 plus years of a high pressure legal practice.

His Ph.D. dissertation, “Slipping Backward: The Nebraska Supreme Court 1938-1995,” was published as a book by the University of Nebraska Press, as a part of the Law in the American West Series. The book received rave reviews by historians and lawyers alike.* Did I mention that Jim was also President of the Nebraska Bar Association in his spare time? I must not forget to also add that Jim served as Chair of the American Bar Foundation’s fellows program.

I should note that Jim raises the most beautiful roses I have seen in many a year. In short, Jim is a man for all seasons. That is not an exaggeration.

All of this brings me to Jim’s fantastic new book, James W. Hewitt, In Cold Storage, Sex and Murder on the Plains, University of Nebraska Press (2015). I suppose I love this book, for among other reasons because I knew of this notorious case and, far more importantly, because I knew many of the participants. They ranged from the brilliant Lannie Roblee, a good old country boy of a Sheriff whose manner belied his intellect; the prosecutor, Fred Schroeder, a decent fellow committed to doing his best together with Paul Douglas, later Nebraska’s Attorney General. who, as the special prosecutor, was sent out from Lincoln to help Fred;** Dick Hove, the defense attorney (of sorts) from the big city of Kearney; and Judge Jack Hendrix, a careful and fair trial judge with whom I had the pleasure of practicing before. See here for an extreme example of a case I tried before Judge Hendrix–please concentrate on “Baby Jason.”

Not only did I know many of the participants, I have a keen sense of the place. I, too, have eaten in the basement of the church in Stockville, Nebraska (population about 25) where the ladies from Curtis, Nebraska come over on “court days” to serve meals to lawyers, witnesses, judges and juries in heaping family style lunches. Still further, I well remember the vastness and the isolation of the place, and particularly the remote lake where the bodies were dumped.

Spillway structure at Medicine Creek Dam, in Frontier County, Nebraska north of Cambridge, Nebraska. The dam was constructed in 1948-49. The reservoir behind it is Harry Strunk Lake. This file is made available under the Creative Commons CC0 1.0 Universal Public Domain Dedication

Spillway structure at Medicine Creek Dam, in Frontier County, Nebraska north of Cambridge, Nebraska. The dam was constructed in 1948-49. The reservoir behind it is Harry Strunk Lake.

For you see, In Cold Storage tells of the murder and the grisly dismemberment of the parents of Kay Hein, a woman who had  participated in a ménage à trois (French for “household of three”) gone deadly wrong. Harold and Ena Nokes were the other participants in the threesome.

Body parts recovered from Strunk Lake photographed in Cambridge, Nebraska Mortuary. Courtesy of Lannie Roblee and reprinted in the book In Cold Storage by James W. Hewitt.

Body parts recovered from Strunk Lake photographed in the Cambridge, Nebraska Mortuary. Courtesy of Lannie Roblee and reprinted in the book In Cold Storage by James W. Hewitt.Ultimately, Harold Nokes was sentenced to life in prison after he confessed to killing his sexual partner’s parents, dismembering the bodies, freezing the parts and then throwing them in the lake.

Harold confessed–twice. Lonnie tricked him the first time. Harold was eligible for the death penalty, but he got life in prison. It is very likely that Judge Hendrix convinced the other judges on the three judge panel not to impose the death penalty.

For reasons that remain unclear, Ena Nokes was sentenced to only a few years in prison for unlawful disposal of the bodies. Out west, they tend to treat lightly those who dispose of litter in the wrong place.

It is not clear why the murders took place. Much of the violence that takes place out near where Central time almost becomes Mountain time has no rhyme nor reason. Apparently, the fact that Ms. Hein had called off her involvement in the trysts with the Nokeses led somehow to the death of her parents.

Over nearly a decade, Hewitt compiled every conceivable fact that could be unearthed. He is the only one ever to have interviewed Mr. Nokes in prison. He obtained confidential files from lawyers and law enforcement personnel. He had access to the tapes of the “bugs” in the home of the perpetrators. He talked to witnesses and those who were familiar with the place and the people. He did the hard work of an academically trained historian.

But what makes the book sing is the writing. The reader is patiently told of the facts with the skill of the best newspaper writer. We learn the texture and the feel of the place and the people. The official story is told, and then deconstructed with the scalpel of an experienced lawyer. Hewitt does not believe we will ever know what really happened. He is not happy with that uncertainty, but like historians and lawyers and newspaper types he tolerates uncertainty while remaining keenly skeptical of the official version. By the way, Hewitt has no doubt that the Nokeses were guilty. Hewitt believes, however, that there is far more to know.

For the details of the story, you will have to buy the book. It can be purchased online from the University of Nebraska Press or Amazon. If you are interested in a real life legal thriller, told in a highly accessible manner, you will happily pay the price for the book. Simply put, you don’t have to be a lawyer, a historian, a newspaperman or any other calling to be intrigued by Hewitt’s masterful prose and deep-dive research. I recommend the book without reservation.***

At 138 pages, the book is an easy one night read. Be aware, however, that as you close the book, turn off the lights, and speculate as Hewitt has speculated, you will no doubt be sure that the dead bolt is firmly in place.****


*For example, Peter Longo, former Chair of the Political Science Department at the University of Nebraska at Kearney who is both a lawyer and PhD, tells us that “Slipping Backward provides an excellent addition to the scholarship of state supreme courts and is the first major work dedicated to a state supreme court of the Great Plains.” Peter J. Longo, Western Historical Quarterly (2008-09-01).

**Ironically, I later represented Fred’s sister, together with my partner Ed Cook and my dear, now tragically departed, friend Wes Mues, in a personal injury case involving her husband. We settled for the most money of any personal injury settlement in Nebraska’s history at the time. Even more ironically, I later tried on behalf of the State of Nebraska the impeachment of Mr. Douglas.

***Mark Scherer, Chairman of the history department of the University of Nebraska at Omaha, a former practicing lawyer and a PhD in legal history, writes: “In the best tradition of Capote’s iconic In Cold Blood, James Hewitt presents a gruesome, bizarre, and tragic tale of sex, murder, and small town intrigue, told with the objective insight of an accomplished legal historian and the gripping narrative style of a novelist. . . . This is a book you should be prepared to complete in one setting. It is that gripping.” Mark Scherer, University Nebraska Press, Book Review of In Cold Storage.

**** Joan and I were privileged to review and comment upon an early draft of the manuscript. That Jim acknowledges our contribution in print together with a hand written note of thanks in our personal copy of the book is an example of a man who gives credit to others when in fact he deserves all of it himself.

Thinking about federal civil practice while preparing for Vince

Vince is a local plaintiff’s trial lawyer.  He is a very good one.  In fact, he gave one of the best closing arguments to a jury that I have ever heard.  But, Vince is my nemesis.   He has completely drunk the cool aid when it comes to jury trials.  Moreover, when I posted about the death of civil jury trials in the federal courts, Vince chewed my ass in his comment, asking “why would a plaintiff want to be in federal court? The decline in civil trials in federal court has much more do to with the interpretation of the law by the Circuit Courts and Supreme Court and the resulting increase in summary judgments granted by the district courts.” When I posted about how I preferred the “English” method of jury selection, which cuts out lawyers for the most part, Vince reminded me that America had won the damn revolution.

So it was that when Vince’s partner, Kathleen, called to invite me to be a luncheon speaker at the Nebraska Association of Trial Attorneys (NATA) annual gathering, I agreed but with one firm caveat.  “Keep Vince the hell out,” I said.  Kathleen replied “absolutely not.”   She muttered something about having cojones (one translation is “manly courage”) and taking what I had coming from Vince.  He would, of course, pepper me with a bunch of questions that I couldn’t possibly answer.  (Vince is whip smart.)   Despite my low T level, Kathleen’s taunting challenge to be a man (I think Vince put her up to that) was too much and I relented.  I would go to the damn NATA luncheon, speak, and then try to fight Vince off during the question and answer period.

Even though the luncheon is months in the future, I began to prepare.  I had to–I absolutely will not let Vince get the better of me.  But, a funny thing happened during my preparation.

I read something Professor Arthur R. Miller recently wrote.  Now, if you aren’t a complete idiot, you are well aware that Miller knows more about federal civil trial practice than any other living human.  He has devoted his entire life, and his considerable talent, to studying and writing about how the federal courts work, and particularly how the federal courts handle civil cases.

Photo credit:  j3net's photostream per Creative Commons license.

Photo credit: j3net’s photostream per Creative Commons license.

What I read was entitled Simplified Pleading, Meaningful Days in Court, and Trials on the Merits: Reflections on the Deformation of Federal Procedure, 88 N.Y.U. Law Review 286 (April, 2013)  (free download here).  Professor Miller’s article is very persuasive.

He makes the following points:

  1. When the Federal Rules of Civil Procedure were promulgated in 1938, they reflected a policy of citizen access for civil disputes and sought to promote their resolution on the merits rather than on the basis of the technicalities that characterized earlier procedural systems.The federal courts applied that philosophy of procedure for many years.
  2. However, the last quarter century has seen a dramatic contrary shift in the way the federal courts, especially the U.S. Supreme Court, have interpreted and applied the Federal Rules and other procedural matters. This shift has produced the increasingly early procedural disposition of cases prior to trial. Indeed, civil trials, especially jury trials, are very few and far between today in the federal courts.
  3. Miller examines the significant manifestations of this dramatic change, and traces the shift in judicial attitude back to the three pro-summary judgment decisions by the Supreme Court in 1986 (the Celotex trilogy of cases). Furthermore, he goes on to discuss the judicial gatekeeping that has emerged regarding (a) expert testimony, (b) the constriction of  class action certification, (c) the enforcement of arbitration clauses in an extraordinary array of contracts (many adhesive in character), (d) the Court’s abandonment of notice pleading in favor of plausibility pleading (which, in effect, is a return to fact pleading), (e) the intimations of a potential narrowing of the reach of in personam jurisdiction, and (f) a number of limitations on pretrial discovery that have resulted from Rule amendments during the last twenty-five years.
  4. According to Miller, all of these changes restrict the ability of plaintiffs to reach a determination of their claims’ merits, which has resulted in a narrowing effect on citizen access to a meaningful day in court. Beyond that, these restrictive procedural developments work against the effectiveness of private litigation to enforce various public policies involving such matters as civil rights, antitrust, employment discrimination, and securities regulation.
  5. Concerns about abusive and frivolous litigation, threats of extortionate settlements, and the high cost of today’s large-scale lawsuits motivate these deviations from the original philosophy of the Federal Rules, but these concerns fail to take proper account of other systemic values. Still further, Miller argues that these assertions are speculative and not empirically justified, are overstated, and simply reflect the self-interest of various groups that seek to terminate claims asserted against them as early as possible to avoid both discovery and a trial. Indeed, they simply may reflect a strong pro-business and pro-government orientation of today’s federal judiciary.
  6. Miller cautions that some restoration of the earlier underlying philosophy of the Federal Rules is necessary if we are to preserve the procedural principles that should underlie our civil justice system and maintain the viability of private litigation as an adjunct to government regulation for the enforcement of important societal policies and values.

After I got done reading Professor Miller’s piece, a cold, a very cold, chill ran down my spine.  My God, could it be that Vince was right?  Oh, hell no!


Civil settlements are for sissies

In a previous post, I wrote about the death of civil jury trials.   I noted that rational people frequently opt for mediation or some other form of dispute resolution in lieu of proceeding to federal court.  The advantages of these procedures are that they are more predictable and less expensive than federal litigation.

Let’s say, however, that a complaint has been filed in federal court.  We, too, offer mediation by referring the parties to an outside mediator.  We also offer the services of our magistrate judges to hold settlement conferences.  The magistrate judge I work with most frequently is Judge Cheryl Zwart.  She is particularly good at settling civil cases.  A former partner in a highly respected litigation firm, who cut her teeth representing railroads in personal injury cases, Judge Zwart is smart, tough as a boot and has “been there and done that.”  She has a superb track record of settling cases, and the lawyers rave to me about her deft manner in doing so.  (See the post script.)

Judge Zwart

Judge Zwart

Some lawyers, however, never want to settle.  Indeed, an old-time trial lawyer once told me that “settlements are for sissies.”   For those lawyers, most of the time, we do not pressure them to engage in alternative forms of dispute resolution.  We understand that mediation and the like may impose unnecessary expenses on the parties, that, in certain situations, alternative dispute mechanisms can undermine the relationship between client and counsel, and, most importantly, we understand that there is a Seventh Amendment right to a jury trial.

In short, if you are one of those lawyers who think that “settlements are for sissies,” let the court and your opponent know that at the front end.  If you do and you mean it, we won’t hassle you.  Just don’t be mad when the jury renders a goofy result.


PS  True story.  The District of Nebraska has a court facility near the Colorado border at North Platte, Nebraska.  The last time I tried a jury case out there, I had a heart attack.  Fast forward to this year.  Faced with good trial lawyers, with a mind-set that settlements are for sissies, I was preparing to go to North Platte to try a grudge match that had been bumping along in our court for years.  At the last moment, and after eight hours or so of work,  Judge Zwart was able to help the lawyers reach a settlement.  I am told that she introduced the settlement conference this way, “Last time Judge Kopf conducted a trial in North Platte, he had a heart attack.  I am not going to let you kill him, so we are going to settle this thing, capisce?”  (At example 3, the Urban Dictionary illustrates Judge Zwart’s meaning of “capisce.”  That is,  “[o]ften used by popular Mafioso bosses like John ‘Dapper Don’ Gotti, ‘” the word is properly used like this: “You fuckin piece of shit,you come around here again ya dead, capisce?!'”)  I thus avoided the death trap that is North Platte.

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