The Recognitions

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I hate William Gaddis. As a would-be writer, Gaddis has had no direct influence on me. And yet, pretty much everything I have done, or planned to do, or started to do, as a writer, which I genuinely thought to be fresh or innovative, I have come to discover has pretty much already been done by him. The invasion or …

Winter’s Tale

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If someone had told me what Mark Helprin’s Winter’s Tale was about, I don’t think I would have read it. Written in 1983, the plot is three parts Gangs of New York, two parts Age of Innocence, with a dash of Dickens and a pinch of Lord of the Rings. A turn-of-century “period piece” set in and around the city …

American Pastoral

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I love the last sentence. “What on earth is less reprehensible than the life of the Levovs?” I love the Swede Levov character. I don’t know if I have ever identified with a fictional character (or even another real person) in the same way I identified with Levov. (Who, whether coincidentally or by design, is a literary alter ego of …

Infinite Jest

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From: Steve Herman To: Bill Chisholm Sent: Tuesday, January 31, 2006 12:36 AM Subject: Book of Last Ten Years What was “the” book of the last 10 years I am supposed to read? ————————————– From: Bill Chisholm Sent: Tuesday, January 31, 2006 11:12 AM infinite jest by david foster wallace ————————————– From: Steve Herman To: Bill Chisholm Sent: Sunday, March …

The Castle (with a touch of Michael Chabon and a lot of James Frey)

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The Castle is one of those books that is sitting on a shelf which I have been meaning to read for years. It really wasn’t as Kafkaesque as I would have expected. Why didn’t the guy just leave? But the book did have those great passages. The Castle, whose contours were already beginning to dissolve, lay silent as ever; never …

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Is John Updike the Shakespeare of Our Time? (The Centaur) (and a touch of Seinfeld)

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It seems like every piece of literary criticism I read lately uses Updike’s work as some sort of benchmark for great literature in the 20th Century. (X is the new Updike…; as Updike and X replaced Faulkner and Joyce…; there isn’t a clear figure from the latter part of the century whom you can point to like you could point …

What to Put on Your i-Pod

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In the new John Sanford mystery, the protagonist receives an i-Pod as a gift, and refuses to load it until he has determined exactly which 100 songs he wants to include. He spends the novel composing his list, while entertaining suggestions and defending against criticisms from his friends. At the end of the book, he publishes the list. To his …

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New York Superior Court Denies Motion to Seal Documents in Product Liability Action in the Interest of Public Policy

In For Trial Lawyers, What's New in Product Liability Law?, What's New in the Courts by gravierhouseLeave a Comment

Two parents sued Graco after their child died due to an alleged defect in a Graco stroller. The parties negotiated a settlement that contained a confidentiality agreement, and the plaintiffs filed an unopposed motion to seal with the court. While acknowledging the propriety of confidentiality of court proceedings under limited circumstances, the court noted that the inquiry into whether to …

The Martian (and a Lesson from Behavioral Economics)

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I thought The Martian was a pretty good movie. Well-made. Well-filmed. Well-acted. (I didn’t really like the Matt Damon character all that much, and found the voice-over narration via video diary a little formulaic and annoying, although I frankly can’t, off the top of my head, think of a better alternative.) But it was reasonably suspenseful and interesting. Thought-provoking. And/But …

District Court in Virgin Islands Calls Into Question the Efficacy of Stipulated Confidentiality Orders

In For Trial Lawyers, Legal Ethics & Professionalism, What's New in E-Discovery and Spoliation?, What's New in the Courts by gravierhouseLeave a Comment

“In the Stipulated Confidentiality Order, the parties agree that certain categories of documents will be designated as confidential. If documents are so designated, the Stipulated Confidentiality Order requires that ‘if filed, the documents shall be filed under seal and shall remain sealed while in the Office of the Clerk as long as they retain their status as stamped “Confidential” documents.’  …

The Long Arc of Justice

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View Full Document Like many of you, I suspect, I began law school with something called Pennoyer v. Neff, followed shortly thereafter by something called a “progeny.” Not being a lawyer at the time, the whole thing made very little sense to me. While it seemed logical to ask whether the parties or events had a sufficient connection to a …

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“Legalnomics”: Lessons from the Field of Behavioral Economics about Perception and Decision-Making for Trial Lawyers

In For Trial Lawyers by gravierhouse1 Comment

View Full Document When I first started practicing law in 1994, the art of trial advocacy embraced the concept of storytelling as a central way of communicating the plaintiff’s cause to the jury. The convention, at that time, was to paint the plaintiff as the protagonist in his or her own life’s story. The jury would be sympathetic to his …

Personal Remarks

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From the LAJ President’s Luncheon, March 20, 2015: View Full Document Last night I read a blog post by my partner Jed about how hard it is to be a plaintiffs’ lawyer.[1] And I was reminded of this scene in the movie Philadelphia. Everyone probably remembers the scene where Denzel Washington goes to see Tom Hanks in his home, as …

To the Rules Committee: Some Thoughts About Class Actions

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Last year, it became clear that the Civil Rules Committee was going to take yet another look at potential changes to the Federal Class Action Procedure, embodied in Rule 23.  For whatever it may or may not have been worth, I provided the Committee with a few thoughts about the current state of class actions, from kind of a Big Picture …

The King of Shorts

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During the Deepwater Horizon litigation, some of the lawyers circulated a few anonymous parodies of interviews that were given by a lawyer who is not involved in the litigation to the U.S. Chamber of Commerce, apparently seeking some attention for himself.  With a Hundred Years of Solitude type feel, they attempt of make light of a fairly incredulous situation.  Are some people really so desperate to feel relevant or …

Standing On The Shoulders Of Those Who Came Before Us

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View Full Document Thank you for the honor of serving as LAJ president. I look forward to the coming year and pledge my service to you. There is one important step you can take today that will make a difference in a new lawyer’s life. Become a mentor. In my law practice, I have been extremely fortunate to have benefitted …

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ABA Issues Formal Opinion re Securing Communication of Protected Client Information over the Internet

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In sum, the Standing Committee on Ethics and Professional Responsibility advised as follows: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security …

U.S. Fifth Circuit Finds Attorney’s Promissory Note to Former Client Non-Dischargeable Where Attorney Violated Rule 1.8(h)

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Mr. Selenberg, an attorney, filed for Bankruptcy, and sought to discharge, among other things, a promissory note that was provided to a former client whose case Mr. Selenberg allowed to prescribe.  He argued that the debt should be discharged, as he did not make any “false representations” to his former client, Mrs. Bates. “For one, he notes that he accurately …

U.S. Supreme Court Reverses $2.7 Million Discovery Sanction Against GM Where Not Causally Related to the Misconduct

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Plaintiffs sued Goodyear, alleging that the failure of a G159 tire caused the family’s motorhome to swerve off the road and flip over. After several years of contentious discovery, marked by Goodyear’s slow response to repeated requests for internal G159 test results, the parties settled the case. Some months later, the plaintiffs’ lawyer learned that, in another lawsuit involving the …

U.S. Fifth Circuit Affirms Sanction of Attorneys Who Withheld Material Evidence from Rule 26 Disclosures

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The plaintiff in the underlying lawsuit claimed she was sexually assaulted on multiple occasions while incarcerated at the Maverick County Detention Center, operated by the defendant, GEO Group.  During the plaintiff’s deposition, she was confronted with recordings of telephone calls which had not be identified or produced as part of the initial disclosures under Rule 26.  The plaintiff filed a …

ABA Provides Guidance for Attorneys Seeking to Withdraw from Representation

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The ABA Standing Committee on Ethics and Professional Responsibility was called upon to address the potential conflict between Court Orders and/or Rules requiring the bases for withdrawal of representation and the attorney’s obligation to maintain client confidences.  While the issue was raised in the context of a desired withdrawal for non-payment of fees in particular, the Committee provided guidance that …

Seventh Circuit Says Wife’s Unauthorized Access to Husband’s E-Mails Could Violate Federal Wiretap Act

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A husband embroiled in an acrimonious divorce brought suit against his wife claiming a violation of the Electronic Surveillance Act by surreptitiously placing an auto-forwarding “rule” on his e-mail accounts that automatically forwarded the messages on his e-mail to her. He also alleges that the wife’s divorce attorney violated the Act by “disclosing” the intercepted emails in response to his …

Covington & Burling Admonished for Representing Non-Party Witnesses in Depositions

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The defendant, Jacobs, hired Covington & Burling to devlop factual information and defenses relating to Jacobs’ work for the Tennessee Valley Authority.  Among other things, Covington helped identify non-party witnesses who might have factual information regarding the TVA-Jacobs contract.  Covington worked with the witnesses to prepare and submit declarations in support of Jacobs’ Motion to Dismiss, asserting derivative sovereign immunity …

Alaska Bar Association Prohibits Use of “Web Bugs”

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A “web bug” is a technology tool that tracks certain information about the document to which it is attached.  They can be used in e-mail newsletters to help track readers, for example, but can also be used in e-mails to “invisibly” track, among other things: when the email was opened; how long the email was reviewed (including whether it was …

Repeatedly Sanctioned Lawyer Sanctioned for Frivolous Pleadings which Contradict Previous Filings by Same Party

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Bordelon Marine filed suit against Bibby Subsea in Louisiana State Court, seeking to collect on, among other things, unpaid Invoice No. 15-58. The factual statements in the complaint were verified by Wesley D. Bordelon, the President of Bordelon Marine. The defendant removed the case to Federal Court, and moved to stay the matter pending arbitration. The Federal Court subsequently compelled …

Tennessee Formal Ethics Opinion Precludes Settlements That Require Attorney to Return His or Her Work Product

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The Tennessee Board of Professional Responsibility issued a formal Ethics Opinion concluding that a settlement provisions requiring attorneys to turn over documents protected by attorney work product may be prohibited by Rule 5.6(b). Specifically, a lawyer may not propose or agree to a settlement agreement that requires a lawyer to turn over any work product materials as part of the …

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ABA Issues Formal Opinion re Securing Communication of Protected Client Information over the Internet

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouseLeave a Comment

In sum, the Standing Committee on Ethics and Professional Responsibility advised as follows: “A lawyer generally may transmit information relating to the representation of a client over the internet without violating the Model Rules of Professional Conduct where the lawyer has undertaken reasonable efforts to prevent inadvertent or unauthorized access. However, a lawyer may be required to take special security …

U.S. Fifth Circuit Affirms Class-Wide Damages Model, Reverses Certification of Fraud Claims, and Remands for Further Consideration of Pot. Waiver Issue and Its Pot. Effect on the Question of Adequacy

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In a case against Progessive for breach of contract, statutory insurance law, and fraud claims relating to the adjustment of total-loss claims, the U.S. Fifth Circuit Court of Appeals rejected Progressive’s challenge under Comcast: “Plaintiffs’ liability theory is that Defendant unlawfully used WorkCenter Total Loss (WCTL) to calculate the base value of total loss vehicles. Plaintiffs claim that using WCTL, …

U.S. Fifth Circuit Finds Attorney’s Promissory Note to Former Client Non-Dischargeable Where Attorney Violated Rule 1.8(h)

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouseLeave a Comment

Mr. Selenberg, an attorney, filed for Bankruptcy, and sought to discharge, among other things, a promissory note that was provided to a former client whose case Mr. Selenberg allowed to prescribe.  He argued that the debt should be discharged, as he did not make any “false representations” to his former client, Mrs. Bates. “For one, he notes that he accurately …

U.S. Supreme Court Reverses $2.7 Million Discovery Sanction Against GM Where Not Causally Related to the Misconduct

In Legal Ethics & Professionalism, What's New in E-Discovery and Spoliation?, What's New in the Courts by gravierhouseLeave a Comment

Plaintiffs sued Goodyear, alleging that the failure of a G159 tire caused the family’s motorhome to swerve off the road and flip over. After several years of contentious discovery, marked by Goodyear’s slow response to repeated requests for internal G159 test results, the parties settled the case. Some months later, the plaintiffs’ lawyer learned that, in another lawsuit involving the …

District Court Judge in Northern District of Ohio Compels Defendant to Write Computer Program to Extract Relevant Information

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Plaintiff filed putative class action alleging violations of the TCPA.  Specifically, Meredith Plaintiff asserts that Defendant’s practice of using autodialed, prerecorded-voice collection calls using contact information obtained from its clients or third-party skip-trace services foreseeably results in Defendant making numerous wrong number calls to the cell phones of people other than the debtor. Previously, the Court ruled on Plaintiff’s motion …

U.S. Third Circuit Reverses Summary Judgment on Preemption in Fosamax Litigation

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Fosamax is a drug manufactured by Merck that belongs to a class of drugs known as bisphosphonates.  Both Merck and the FDA have long been aware that antiresorptive drugs like Fosamax could theoretically increase the risk of atypical femoral fractures. The question that both Merck and the FDA faced in the years following the drug’s approval was whether the developing …

Louisiana Fourth Circuit Emphasizes that, in Considering a Motion to Decertify, the Court Should Consider the Prejudice to the Parties at that Stage of the Proceedings

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The Louisiana Fourth Circuit Court of Appeal recently articulated ten principles relating to a court’s decision on a Motion to Decertify a class: 1. A trial court’s decision denying a decertification motion is an interlocutory judgment that is immediately appealable. 2. A trial court’s decision denying a motion to decertify a class is one involving a valid exercise of discretion …

Magistrate Judge in the Northern District of Indiana Declines to Compel Re-Production of Non-Compliant Electronic Data in Light of Proportionality Considerations

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Addressing the issue of whether electronically-stored information had been produced in compliance with Rule 34, Magistrate Judge Gotsch noted that: “To show that it produced documents as they were kept in the ordinary course of business, a producing party cannot simply assert that the format of its production comports with its usual business practices. A producing party must also show …

U.S. Ninth Circuit Affirms Certification of RICO Claims against Credit Card Processing Service Providers

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Small businesses and business owners who leased “point of sale” credit and debit card processing equipment brought two related class claims against Leasing Defendants, a group of entities who financed their acquisition of such equipment.  As a matter of general background: Credit and debit card transactions are processed through financial networks called interchanges that are run by entities such as …

Ninth Circuit Rejects Stand-Alone ‘Administrative Feasibility’ Requirement in Addition to the Superiority considerations under Rule 23(b)(3)

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Plaintiffs brought a putative class action against ConAgra on behalf of consumers who purchased Wesson-brand cooking oil products labeled “100% Natural” which they allege was false or misleading, as Wesson oils are made from bioengineered ingredients that are “not natural”.  The district corut granted class certification, and the U.S. Ninth Circuit Court of Appeals affirmed. “The language of Rule 23 …

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