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

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“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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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

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouse1 Comment

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 …

ABA Clarifies the “Generally Known” Exception Allowing the Use of Information Obtained in Connection with a Former Client’s Representation

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Under both the ABA Model Rule and Louisiana Rule of Professional Conduct 1.9(c)(1), a lawyer may not use information relating to the representation of a former client to the former client’s disadvantage without informed consent, (or except as otherwise permitted or required by the Rules of Professional Conduct), unless the information has become “generally known”.  The ABA’s Standing Committee on Ethics and …

N.Y. State Bar Prohibits Marketing Fees to Avvo

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A lawyer who wished to participate in Avvo Legal Services sought an Ethics Opinion from the New York State Bar Association.  Legal services would be offered through Avvo’s website, based on marketing fees that Avvo charges.  “Because” the Committee said, “Avvo’s method of operation is crucial to our response, we will devote several paragraphs to describing the Avvo Legal Services …

Duties Owed by Appointed Counsel to MDL Litigants Whom They Do Not Formally Represent

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Stemming from my experience in the BP Oil Spill Litigation, I started to think about the specific duties owed by Lead Counsel to other litigants in an MDL whom they do not formally represent. Which questions, among others, were raised in a series of speeches and papers that have evolved over time, Ethical Questions Raised by the BP Oil Spill …

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 …

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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, …

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

In Legal Ethics & Professionalism, What's New in the Courts by gravierhouse1 Comment

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 …

Supreme Court of Massachusetts Holds that a Brand Manufacturer Can Be Liable for Failure to Warn Doctors and Patients Injured by Generic Forms of the Drug, where the Conduct is Not Merely Negligent, but Reckless

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“Where failure to warn claims are brought by consumers of a manufacturer’s own product, the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business…. But if consumers of generic drugs were allowed to recover damages for a brand-name manufacturer’s negligent failure to warn, it would be far more difficult …

U.S. Fifth Circuit Strikes Down the Obama Administration’s “Fiduciary Rule”

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The U.S. Chamber and two other business groups filed suit in the Northern District of Texas, challenging the “Fiduciary Rule” – a package of seven different DOL Regulations that broadly re-interpret the term “investment advice fiduciary” and re-define exemptions that relate to fiduciaries from ERISA and the Internal Revenue Code.  On appeal, the U.S. Fifth Circuit struck down the Rule. …

U.S. Fifth Circuit, En Banc, Reverses Pierre, and Holds that Review for Factual Determinations is De Novo Where Plan Does Not Afford Administrator Discretion

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  “When an ERISA plan lawfully delegates discretionary authority to the plan administrator, a court reviewing the denial of a claim is limited to assessing whether the administrator abused that discretion. For plans that do not have valid delegation clauses, the Supreme Court has held that a denial of benefits challenged under §1132(a)(1)(B) is to be reviewed under a de …

U.S. Third Circuit Addresses Preemption in the Context of a Product that is Made Up of Some, But Not All, Class III Components; Allows Personal Jurisdiction Discovery to Go Forward on Alter Ego Theory

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This case presents an issue of first impression among the Courts of Appeals: How courts should apply the express preemption provision under the Federal Food Drug & Cosmetic Act to State Law tort claims challenging the design and manufacture of a medical device comprised of multiple components, some of which are from ‘Class III’ medical devices subject to Federal requirements, …

On Mandamus, U.S. Fifth Circuit Reverses Attempt to Expand Privilege Waiver

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The plaintiff, Itron, acquired a company called SmartSynch, unknowingly assuming a $60 million contractual obligation to a third company, Consert. After years of litigation, Itron settled with Consert for $18 million, and now sues SmartSynch defendants for negligent misrepresentation, seeking the cost of the Consert litigation and settlement.   The Complaint never specifically pleads reliance on any legal advice, nor does …

Louisiana Supreme Court Emphasizes that Daubert Only Applies to Methodology, and Not to the Expert’s Conclusions Themselves, Nor Issues of Credibility; in Proving Causation, either a Qualitative or Quantitative Assessment will Suffice

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Defendant, Fon’s Pest Management, spot treated the plaintiffs’ home for termites using a termiticide containing fipronil, an odorless and colorless neurotoxin that has been widely used since 1996. Following the treatments, the plaintiffs allegedly experienced headaches, nausea, dizziness, and confusion, and subsequently filed suit.  In support of their action, the Freemans retained several experts, including two medical toxicologists, a PhD …

U.S. Fifth Circuit Affirms Dismissal of Breach of Fiduciary Duty Claims in Connection with Radio Shack Bankruptcy

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The RadioShack 401(k) Plan allowed participants to invest their deferred salary or company match contributions in over twenty investment options. The Plan had an Employee Stock Ownership Plan (ESOP) that allowed participants to invest their retirement savings in RadioShack stock, which was held in the RadioShack Stock Fund. Plan documents required that RadioShack be offered as an investment option. If …

U.S. Ninth Circuit Vacates Nationwide Settlement Class Based on Variations in State Law

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A nationwide class action settlement arising out of misstatements by Hyundai and Kia regarding fuel efficiency was vacated by the U.S. Ninth Circuit Court of Appeals on the basis that the District Court was required to apply a choice-of-law analysis and consider whether variations in State Law destroyed predominance under Rule 23(b)(3) – noting, with respect to remand, that the Court …

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