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 …

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 …

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 …

To Protect and Preserve an Independent Judiciary

In For Trial Lawyers, Legal Ethics & Professionalism by gravierhouse1 Comment

View Full Document Our Founding Fathers recognized that a strong and independent judiciary was essential to safeguard the personal and property rights of all members of society, who would be treated equally, under the Rule of Law. Here, in Louisiana, we have a strong, committed, vibrant, intelligent, dedicated, independent, and hard-working judiciary that helps attorneys on both sides of the …

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Louisiana First Circuit Court of Appeal Affirms Sanction of Party and Attorneys Who Fail to Disclose Source of Exhibits Submitted to the Court

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

The plaintiffs to a preliminary injunction action attached copies of three documents from a flash drive to their post-trial memorandum which had not been produced by the defendant in discovery or in response to a public records request and had not been entered into evidence during the trial. The defendant served interrogatories seeking information regarding the source of the exhibits.  …

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 …

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”

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

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 …

U.S. Fifth Circuit Sanctions Defendant Who Contests Liability and Presents Purported Experts in Bad Faith

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“The general rule in federal court, the so-called ‘American Rule,’ is that litigants are responsible for their own fees. Federal courts, however, possess ‘inherent power’ to assess fees as sanctions when the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons. Under this test, sanctions are warranted when a party knowingly or recklessly raises an objectively …

Attorney Can Be Sued for Copyright Infringement When Using Substantial Portions of Another’s Brief

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A lawyer copied “substantial portions” of a brief drafted by a co-defendant in a patent case, who was “the owner of a valid and registered copyright” for its brief.  Judge Hatter, sitting in the Central District of California, rejected the defendant’s claim of “fair use”. First, the defendant “did not add new expression, meaning or message to Newegg’s draft brief. …

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Louisiana First Circuit Court of Appeal Affirms Sanction of Party and Attorneys Who Fail to Disclose Source of Exhibits Submitted to the Court

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

The plaintiffs to a preliminary injunction action attached copies of three documents from a flash drive to their post-trial memorandum which had not been produced by the defendant in discovery or in response to a public records request and had not been entered into evidence during the trial. The defendant served interrogatories seeking information regarding the source of the exhibits.  …

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

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

Plaintiffs brought a putative class action against ConAgra on behalf of consumers who purchased Wesson-brand cooking oil products labeled u201c100% Naturalu201d which they allege was false or misleading, as Wesson oils are made from bioengineered ingredients that are u201cnot natural.u201du00a0 The district corut granted class certification, and the U.S. Ninth Circuit Court of Appeals affirmed. n “The language of Rule …

Connecticut Supreme Court Modifies Consumer Expectation Test under 402A, Rejects Affirmative Requirement for Alternative Feasible Design under Third Restatement

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In certified question arising from wrongful death action brought in Federal Court by survivors of former smoker, Philip Morris urged the Connecticut Supreme Court to adopt the Third Restatement, which “imposes two requirements that are not mandated under our [Second Restatement] § 402A tests: (1) proof that the harm was foreseeable; and (2) proof that a reasonable alternative design existed …

Plaintiff’s Social Media History is Discoverable, but with Limitations

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Defendant in a personal injury case sought the plaintiff’s social media history.  While the plaintiff technically waived her objections to the discovery requests by failing to serve them within thirty days, Magistrate Judge Erin Wilder-Doomes, sitting in the Middle District of Louisiana, nevertheless limited them as overbroad: “As Defendant points out, social media is generally discoverable. However, a request for …

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

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

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 …

Illinois Court of Appeal Rejects Request to Forensically Examine Plaintiff’s Computer System

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Plaintiff in a personal injury case appealed a contempt order for failing to submit his personal and work computers for forensic imaging. The plaintiff argued that forensic imaging was too extensive and intrusive where computers were “not the focal point of the case” and the defendants could obtain this information by other means. The court of appeal agreed with the …

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

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

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”

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

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 …

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