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WITTENBERG ESCAPES DISBARMENT ATTEMPT State Bar prosecutors have failed to get former intellectual property star Malcolm Wittenberg disbarred for engaging in insider trading. On Friday, a three-judge appellate panel of the State Bar Court affirmed a hearing judge’s 2003 decision to suspend Wittenberg from practicing law for three years, with two extra years of probation. The State Bar had argued that disbarment was warranted. “While we agree that the criminal violations were inexcusable for any attorney, particularly one in [Wittenberg's] position of experience and knowledge,” the review panel held, “we see no reason to change [the hearing judge's] previous decision that this crime is ineligible for summary disbarment.” Wittenberg, who headed the IP department at Crosby, Heafey, Roach & May for five years, was found guilty in 2001 of using inside information to make a modest profit off a former client. Wittenberg, who has been working as a patent agent for Dergosits & Noah, could be practicing law again soon. Friday’s decision gives him credit for time already served on a suspension that began in November 2001. Doron Weinberg, the Weinberg & Wilder partner who represented Wittenberg in the State Bar Court, said he hopes “the Bar will at last recognize that this is a fair and just outcome and abandon further attempts to have Mr. Wittenberg disbarred.” State Bar prosecutor Donald Steedman said an appeal to the state Supreme Court remains a possibility. — Mike McKee CALIFORNIA SIMPLIFIES ITS JURY INSTRUCTIONS Lawyers may love legalese, but jurors don’t. That fundamental observation is behind the soon-to-be finalized “plain-English” criminal jury instructions — part of California’s ongoing bid to improve communication between courts and jurors. Expected in mid-2005, they will come more than a year after the state launched its plain-English civil jury instructions to mixed reactions from litigators. California stands alone, at least for now, as the only state to have written new criminal and civil instructions from scratch. Attempts at clarifying and simplifying jury instructions have been very slowly spreading across the country in the past two decades. Arizona, Hawaii, Iowa, Michigan, Oregon, Pennsylvania and Wisconsin have all revised their civil instructions to varying degrees, according to the National Center for State Courts. While lawyers disagree on the success of the civil instructions, studies have found enormous upswings in jurors’ comprehension when they had the opportunity to use plain-language instructions, said Joseph Kimble, a professor at the Thomas M. Cooley Law School in Lansing, Mich. California’s new instructions have eliminated double negatives and semicolons. The sentences are shorter, affirmative and in the active voice. The language is simpler — too simple for at least one lawyer. “They’re dumbed down,” said plaintiff attorney William Weiss, a San Francisco solo practitioner who has been trying cases for 29 years. “I think they’re a little wordy and not as elegant or clear as the old ones.” — The National Law Journal NEW MALPRACTICE FEAR: WAKING UP IN SURGERY The country’s top patient-safety watchdog group has issued an alert about the dangers of waking up during surgery — a warning that many in the legal and health professions say could trigger more malpractice suits against anesthesiologists. Plaintiff attorneys claim that in the past, people who awoke during operations rarely sued because they couldn’t prove it, and doctors ignored them. But now, they say, these patients have new ammunition: an alert recently released by the Joint Commission on Accreditation of Healthcare Organizations. It says that anesthesia awareness happens 20,000 to 40,000 times a year, and that this phenomenon is an “under-recognized and under-treated” problem in the health care industry. “Somebody has actually opened the door and said, ‘Hey, this does happen,’” said attorney William DeGarmo of San Jose’s McCann & Logue, who is handling two anesthesia awareness suits. “If someone had said to me 10 years ago, even five years ago, that someone had woken up during surgery, I’d say, ‘I can’t imagine that.’ � But it’s only recently that publicity has come out about this that people are saying, ‘I’m not nuts. This did happen.’” “I think there’s a concern that this kind of an alert could prompt more lawsuits,” said Karen Posner, an anesthesiology professor at the University of Washington who tracks medical malpractice claims for the American Society of Anesthesiologists. — The National Law Journal

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