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March 2007

MRGO suit update

For awhile immediately after Katrina I posted a lot about the disaster.   I imagined people who had lost all their possessions and were displaced by hundreds of miles, separated from their friends, and that finally at some point they would be able to get onto the internet, and it might be some small service to research and find links that would lead them to useful resources.  So (apart from making some modest donations to charities) that's what I did. 

In the same spirit, here's a link to an update on a class action lawsuit in New Orleans against the Army Corps of Engineers arising from the construction of MRGO.    The link is to a website called the Levee Litigation Group, which appears to be set up by a consortium of plaintiffs' lawyers who are signing people up to be part of one or more class actions against the Army Corps of Engineers based on MRGO, or the 17th Street levee, or the London Ave. canal.  If you are one of the folks in New Orleans who were more or less wiped out by Katrina, there are all sorts of lawyers and law firms to contact for legal advice.  Looks like if you want in on the class action, you may need to take action by the end of this monthSo there isn't a moment to lose.

[Later:  here is one place to get an SF95 form.]

[March 1:  The New Orleans Times Picayune reports that the deadline is really March 1, and that the Army Corps of Engineers is accepting the claim forms at all its regional offices.

Late Wednesday afternoon, the corps announced that the claims forms would be accepted until the deadline at any of its offices around the nation. A list of corps offices is available at on the Internet.

Click here for the story.  Also, even if you miss the March 1 deadline, you still should file the form, because under another statute there is another deadline that expires two years after the occurrence and that deadline is in August.  Click here for more explanation.]

Generally, about a year ago I decided to step back from writing about Katrina issues.  Although fascinating, those issues are really far beyond the scope of my firm's practice or what I want to do with this blog.         


Lead in drinking water in DC schools

DC again has an issue with lead in drinking water -- this time, in several schools.

One fountain in a kindergarten classroom at Kenilworth showed lead levels of 1,200 parts per billion. The Environmental Protection Agency recommends that school water fountains be taken out of service if the lead level exceeds 20 parts per billion.

My guess is that it is leaching out of brass fittings.

Top ten reasons to move for mistrial in a civil trial

An English lady once asked the Lord Chief Justice what was necessary in order to win a case in court.  He replied: "First, you need a good case, then you need good evidence, then you need good witnesses, then you need a good judge, then you need a good jury, and then you need good luck."

Wellman, The Art of Cross-Examination, Ch. 6, p. 143.  As this quote suggests, there are a lot of things that can go wrong.  Improper testimony or argument must be objected to, and if appropriate, a curative instruction should be requested.  However, the curative instruction, if given, may be insufficient to remove the prejudice, and it may no longer be possible for your client to get a fair trial.  When that happens, the defense counsel must move for a mistrial.

This, of course, is not to be done by blurting out in open court, in front of the jury, "I move for a mistrial."  No, the way it is done is to rise and ask the court if you may approach.  Then you must move for a mistrial at the bench, out of the hearing of the jury.  The trial judge may not want to hear this, and may refuse permission to approach, but you must be insistent, and in any event you must make your motion at the earliest opportunity.  The denial of a request for relief is preserved for appellate review if the record shows that it was presented to the trial court "at a time when the trial court could have corrected the error."  McCallum v. State, 81 Md. App. 403, 419, 567 A.2d 967.

Failure to do so will likely result in waiver of any right to take the issue up on appeal. To preserve the argument that a curative instruction to disregard inadmissible evidence cannot cure the error, a motion for mistrial is necessary.  See Medical Mutual v. Evans, 330 Md. 1 (1993).

There are some trial events that will likely result in an objection, motion to strike, request for curative instruction, and a motion for mistrial:

  1. Reference to the defendant's liability insurance or insurer in testimony elicited by plaintiff's counsel, or in plaintiff's counsel's closing argument.  See, e.g., Snowhite v. State, 243 Md. 291 (1963).
  2. References to race or racial discrimination in a suit in which there is no claim for discrimination.  See, e.g., Tierco Maryland, Inc. v. Williams, 381 Md. 378 (2004).
  3. Counsel's expression of his or her own opinion on the issues in closing.
  4. A derogatory remark about the opposing party.  Renaudo v. Bloom, 209 Md. 1 (1956). 
  5. The "Golden Rule" argument in closing, inviting the jurors to step into the shoes of the plaintiff.  See, e.g., Werner v. Upjohn Co., 628 F.2d 848 (4th Cir. 1980), cert. denied, 449 U.S. 1080.
  6. Arguing matter outside the record.
  7. Comments on failure of a witness to testify, when the witness was equally or more available to the party who is making the adverse comment.
  8. Mention of excluded matter.
  9. Vouching personally for a witness.
  10. Juror misconduct, or inappropriate contact between parties or their attorneys and jurors.

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