The Fourth Turning

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Until a few years ago, I was only really interested in reading fiction. (I liked to read the Chuck Klosterman books, but I really thought of those more as extended New York Times Magazine or Book Review pieces than “non-fiction”.) Recently, however, I have found that non-fiction books have tended to have a bigger impact on me than novels. I …

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 …

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Superior Court Judge in Arizona Grants Center for Auto Safety’s Motion to Unseal Records from Goodyear G159 Tire Cases

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

The Center for Auto Safety (CAS) intervened into a wrongful death suit against Goodyear arising from defects in its G159 tire.  The Court granted CAS’s motion to unseal a large portion of the records that had been previously subject to a protective order, in that case and in several other similar cases. “In the course of the ruling adopting the Protective Order, …

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

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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 gravierhouse1 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

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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 …

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New York City Bar Association Issues Opinion re “Contingent” Loans to Attorneys

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The New York City Bar Association opined that: “A lawyer may not enter into a financing agreement with a litigation funder, a non-lawyer, under which the lawyer’s future payments to the funder are contingent on the lawyer’s receipt of legal fees or on the amount of legal fees received in one or more specific matters.” Distinguishing from arrangements in which …

While Enforcing Arbitration Provision, U.S. District Court in California Sanctions Defendant

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Plaintiff Kate McLellan sued Fitbit for alleged misrepresentations about the accuracy of heart rate monitoring in its devices. Fitbit told the Court that the Terms of Service McLellan had agreed to required arbitration of her claims at the American Arbitration Association (AAA). Fitbit also said that McLellan’s objections to the scope and enforceability of the agreement were delegated to the …

U.S. District Court in Illinois Allows Suit Against Professional Objectors to Proceed

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In a suit brought by class action attorney Jay Edelson against professional objectors Darrell Palmer and Chris Bandas, the court dismissed the RICO and abuse of process claims, but allowed the claims based on unauthorized practice of law to proceed. “Bandas does not contest Plaintiff’s categorization of his and Palmer’s activities in the Gannett litigation as constituting the ‘practice of …

U.S. District Court in New Jersey Precludes Trial Counsel from Responding to Juror who Reached Out to Explain what Happened During Deliberations

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Following a jury verdict in favor of plaintiffs in an employment discrimination case, one of the defense counsel received the following message through the firm’s website: “Hello, This message is for Mr. Carmagnola and not for legal advice. As a member of the jury for the Montone vs. Jersey City case, I was wondering if you’d like to know a …

Ohio Board of Professional Conduct Places Restrictions on Settlements Which Include Secrecy Agreements

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The Ohio Board of Professional Conduct recently opined that: “A settlement agreement that prohibits a lawyer’s disclosure of information contained in a court record is an impermissible restriction on the lawyer’s right to practice. A lawyer may not participate in either the offer or acceptance of a settlement agreement that includes a prohibition on a lawyer’s disclosure of information contained …

Tennessee Board of Professional Responsibility Places Restrictions on Settlements which Include Secrecy Agreements

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The Tennessee Board issued an Ethics Opinion which advises that: “It is improper for an attorney to propose or accept a provision in a settlement agreement that requires the attorney to be bound by a confidentiality clause that prohibits a lawyer from future use of information learned during the representation or disclosure of information that is publicly available or that …

While Reversing Jury Verdict Due to Attorney Conduct, U.S. Fifth Circuit Affirms Plaintiffs on Personal Jurisdiction, Preemption, and Product Defect in Medical Device Case

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Plaintiffs who received metal-on-metal hip implants, suffered complications, and required revision surgery, received jury verdict of $502 million against the manufacturer and its parent company. The District Court applied Texas’ statutory exemplary-damages cap, which reduced the $360 million punitive award to $9.6 million. On appeal, the U.S. Fifth Circuit held that: (i) metal-on-plastic hip implants were viable alternative design, (ii) …

ABA Issues Formal Opinion Regarding an Attorney’s Duty to Inform the Client of a Material Error in Representation

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Recognizing that errors occur along a continuum, an error is material if a disinterested lawyer would conclude that it is (a) reasonably likely to harm or prejudice a client; or (b) of such a nature that it would reasonably cause a client to consider terminating the representation even in the absence of harm or prejudice. More fully: “A lawyer’s responsibility …

Superior Court Judge in Arizona Grants Center for Auto Safety’s Motion to Unseal Records from Goodyear G159 Tire Cases

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

The Center for Auto Safety (CAS) intervened into a wrongful death suit against Goodyear arising from defects in its G159 tire.  The Court granted CAS’s motion to unseal a large portion of the records that had been previously subject to a protective order, in that case and in several other similar cases. “In the course of the ruling adopting the Protective Order, …

Attorneys Sanctioned by Texas State Court for Collusive Settlement involving Minors Competing for Limited Insurance Coverage

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The victim of a trucking accident was survived by two different sets of children with two different mothers.  Each instituted a separate wrongful death action, which were consolidated, on motion of the defendant, in Webb County.  The defendant’s insurer was willing to settle for policy limits, and initally proposed mediation or arbitration to apportion the insurance proceeds between and among …

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U.S. Fifth Circuit Affirms Jury Verdict Against Crane Manufacturer for Failure to Warn

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The plaintiff was seriously injured while operating a crane that started to tip when one of the crane’s counter-weights fell onto the cab, and knocked him to the ground. On appeal, the manufacturer argued that the warning about the general hazards of tipping over (severe injury or death, for example) – combined with the instructions about how to avoid a …

New York City Bar Association Issues Opinion re “Contingent” Loans to Attorneys

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The New York City Bar Association opined that: “A lawyer may not enter into a financing agreement with a litigation funder, a non-lawyer, under which the lawyer’s future payments to the funder are contingent on the lawyer’s receipt of legal fees or on the amount of legal fees received in one or more specific matters.” Distinguishing from arrangements in which …

While Enforcing Arbitration Provision, U.S. District Court in California Sanctions Defendant

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

Plaintiff Kate McLellan sued Fitbit for alleged misrepresentations about the accuracy of heart rate monitoring in its devices. Fitbit told the Court that the Terms of Service McLellan had agreed to required arbitration of her claims at the American Arbitration Association (AAA). Fitbit also said that McLellan’s objections to the scope and enforceability of the agreement were delegated to the …

U.S. District Court in Illinois Allows Suit Against Professional Objectors to Proceed

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

In a suit brought by class action attorney Jay Edelson against professional objectors Darrell Palmer and Chris Bandas, the court dismissed the RICO and abuse of process claims, but allowed the claims based on unauthorized practice of law to proceed. “Bandas does not contest Plaintiff’s categorization of his and Palmer’s activities in the Gannett litigation as constituting the ‘practice of …

U.S. District Court in New Jersey Precludes Trial Counsel from Responding to Juror who Reached Out to Explain what Happened During Deliberations

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

Following a jury verdict in favor of plaintiffs in an employment discrimination case, one of the defense counsel received the following message through the firm’s website: “Hello, This message is for Mr. Carmagnola and not for legal advice. As a member of the jury for the Montone vs. Jersey City case, I was wondering if you’d like to know a …

U.S. Fifth Circuit Affirms Dismissal of Imprudence Claims

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A putative class of participants in and beneficiaries of the Idearc Retirement Plan brought claims for breach of loylaty and imprudence in the management and administration of the plan – a “defined contribution” or “individual account” plan, allowing participants to contribute to the plan and invest their contributions in a variety of pre-selected investment options, including Idearc stock. The plaintiffs …

U.S. Fifth Circuit Reverses Denial of Life Insurance Benefits where Plan Administrator Fails to Address Beneficiary’s Expert Report

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Esther White was the beneficiary of her husband’s life insurance policies governed by ERISA, which contained exclusions where death is caused, at least in part, by “intoxication” as defined by Arkansas law, or by the “voluntary ingestion” of any “narcotic” or “drug” that is not prescribed by a physician. Coverage was denied by the Plan Administrator, and summary judgment was …

U.S. Fifth Circuit Allows Hospital to Pursue Assigned Claims for Benefits Against Blue Cross

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Innova Hospital of San Antonio sued multiple insurance companies and third-party plan administrators in Texas State Court as an assignee of the insurance benefits owed to the patients treated at its facility alleging that the defendants either failed to pay or reduced payment substantially. The action was removed under ERISA. The District Court dismissed the hospital’s claims, but the Fifth …

U.S. Supreme Court Limits Application of American Pipe in Successive Class Actions

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The Securities Exchange Act of 1934 has both a two-year statute of limitations and a five-year statute of repose. With respect to complaints that China Agritech engaged in fraud and misleading business practices causing the company’s stock price to plummet when the misconduct came to light, the accrual date for purposes of the two-year limitation period was February 3, 2011, …

U.S. Supreme Court Denies Cert from Colorado Supreme Court “Stream of Commerce” Decision

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A Colorado resident purchased a replacement main rotor holder for his radio-controlled helicopter from a retailer in Colorado. The main rotor holder was manufactured by Align Corporation, a Taiwanese company, and distributed by Horizon, a Delaware-based corporation. Align has no physical presence in the United States, but it contracts with U.S.-based distributors to sell its products to retailers who, in …

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