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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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 …

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. …

Gibson Dunn Disqualified by California Superior Court for Using Privileged E-Mail that Had Been Inadvertently Disclosed

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According to the formal Court Order: “An email from attorney to client shows attorney/client privilege; Counsel’s review and use of the email at deposition goes beyond ‘mere exposure’ and raises the likelihood that this could affect the outcome of these proceedings both in terms of Plaintiff’s rights against use of his privileged communications against him and in terms of the …

Judge in W.D. Arkansas Sanctions Attorneys who Dismiss Putative Class Action to Effectuate Settlement in State Court

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A putative class action was filed in the Circuit Court of Polk County, Arkansas, and properly removed under the Class Action Fairness Act of 2005 (CAFA). An answer was filed, followed by a motion for partial judgment on the pleadings.  Then the court stayed the action on joint motion of the parties. At the initial mediation session, the possibility of …

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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 …

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 …

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

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

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 …

U.S. Fifth Circuit Rules on Exclusion of Expert Reports in Maritime Products Case

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Mr. Barhanovich was operating a recreational fishing boat in the waters south of Biloxi, Mississippi, when his boat’s SMC-made outboard motor struck a submerged dredge pipe, owned by Bean. The swivel bracket on the motor broke, causing the motor to rotate up into the boat, where it struck and killed Barhanovich. His estate sued Bean for wrongful death, and Bean …

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 …

U.S. District Court in Kentucky Allows Discovery of Prior Incidents in Products Liability Case

In 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

In a product liability suit against an electric golf cart manufacturer arising out of the death of a child in a rollover accident, the Magistrate Judge directed the defendant, E-Z-GO, to produce non-privileged information from both internal and external sources regarding “other E-Z-GO incidents related to any of the four design features and other E-Z-GO incidents for which Defendants are …

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 Affirms Dismissal of Defective Gas Tank Case based on Exclusion of Proffered Expert Testimony

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This product liability wrongful death suit was originally filed in California, and then transferred to Texas, where the accident occurred. First, the court conducted a choice-of-law analysis, using California’s “government interest” test:  “Since California and Texas law differ, we consider whether there is a ‘true conflict.’ A true conflict arises when both states have a legitimate interest in applying their …

U.S. Fifth Circuit, En Banc, Affirms Certification of RICO Suit Arising out of alleged Pyramid Scheme

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Plaintiffs brought a civil RICO action alleging that Stream Energy, through its multi-level marketing program, “Ignite”, operated a fraudulent pyramid scheme. The district court certified a class of plaintiffs comprising of those who lost money participating as Independent Associates (“IAs”) in the “Ignite” program.  Reviewing that certification en banc, the U.S. Fifth Circuit affirmed the certification. As the Supreme Court …

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