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August 2011
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Professional reading -- notable blog posts

Here are some notable blog and twitter posts I've collected:

"Do it yourself tort reform:  How the Supreme Court quietly killed the class action", by Professor David S. Schwartz.  Key quote:  "Concepcion is the culmination of twenty-five years of Supreme Court arbitration jurisprudence that has turned the FAA into a do-it-yourself tort reform statute.  By adding an arbitration clause, a would-be defendant can do away with juries, with pesky discovery into its documents or employees’ testimony, and, now, with class actions."  From Scotus blog.

"Want efficiency?  Look to the little things", by Toby Brown.  In this post the author recognizes the aversion of lawyers and law firms to big changes, and therefore recommends that efficiency be pursued incrementally, in small steps.  As an example, he points to software that will create a Table of Authorities for a brief, Best Authority.  I'd be interested in buying Best Authority but for the pricing structure.  However, this post reminded me of what a miracle it was, the first time I saw Full Authority create a table of authorities.  Where's my old copy of Full Authority, and can I get it to run on Windows 7?

Virginia:  Civil Jury Trials Are On the Decline. " In 2000, there were 1,514 civil jury trials in Virginia.  In 2009, that number declined 61 percent to only 592."  This has also been true of the number of jury trials in federal courts.

Lawyers' runner gets two years in prison.  This was in Virginia.

The Essential Cloud:  Top Tools for Lawyers

  (from Attorneyatwork)

Lexis Nexis has entered the legal document market.  This is in the UK.  In the U.S., LegalZoom and RocketLawyer exist, so it would be surprising if Lexis Nexis doesn't bring its product here.

In D.C., there's a novel way to settle around another defendant, as recently discussed by the Court of Appeals.

 

 


Twombly-Iqbal standard adopted by the District of Columbia Court of Appeals (again)

The District of Columbia Court of Appeals has again adopted the pleading standards under Rule 8(a) as construed in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).  See Potomac Dev. Corp. v. District of Columbia, No. 10-CV-632 (D.C. Sept. 15, 2011), slip op. at 18 & n. 4. 

The Court had previously adopted the plausibility standard in Mazza v. HouseCraft, LLC, 18 A.3d 786 (D.C.), which was vacated as moot, 22 A.3d 820 (D.C. 2011) thanks to a settlement between the parties there.

In the Potomac Development decision, the Court noted that "Because of the persuasiveness of the vacated opinion in Mazza, we draw on it here."

Quoting Iqbal, the Court stated that Rule 8 does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.

 


Partial remittitur of $6.227 million verdict in Virginia based in part on Facebook spoliation

A trial verdict of $6,227,000 to the decedent's husband in a wrongful death action arising from a truck accident in Virginia was challenged based in part on allegations of discovery violations related to the cleansing of the plaintiff's Facebook account of unflattering photographs.  The Virginia Lawyers Weekly blog has just updated the story, with an account of the trial court's post judgment decision reducing the verdict to $2.1 million in a 32 page order.

A few choice quotes from the order:

During the course of their discussion, Murray questioned how the Defendants had obtained the "1 [heart] .. hot moms photo." Smith said she thought the photo likely came from Facebook. Smith accessed Lester's Facebook page, and after seeing Facebook photo, Murray instructed Smith to tell Lester to "clean up" his Facebook because "we don't want blowups of this stuff at trial."

. . . .

Following Murray's instructions, Smith emailed Lester at 9:54 a.m. and 3:49 p.m. on March 26,2009. The first email requested information from Lester to answer the interrogatory seeking the identities ofthe individuals in the "I .. hot moms" photo. After informing Lester that the "I [heart] .. hot moms photo" was on his Facebook page, Smith stated there are "some other pics that should be deleted." The second email exhorted Lester to "clean up" his Facebook page because "we do NOT want blow ups of other pics at trial so please, please clean up your facebook and myspace!"

. . . .

Murray intentionally omitted from the Privilege Log and the Enhanced Privilege Log the March 26,2009,9.54 a.m. email from Smith to Lester and willfully failed to deliver it to the Court for in camera inspection. Murray concealed the email from the Court out offear that the Court would grant yet another continuance ofthe trial, scheduled to begin on December 7, 2010.

. . . .

After the trial, Murray furnished the March 26,2009,9:54 a.m. email to the Court on December 14, 2010. In his letter oftransmittal, Murray falsely represented to the Court that the omission of this now notorious email was caused by the mistake of a paralegal then employed by the Allen Firm, when, in fact, Murray knew his own misconduct caused the omission.

. . . .

92. Murray's conduct at trial included a number of actions designed to inflame the passions and play upon the sympathy of the jury. These actions include the following:
a. Weeping during opening statement and closing argument. b. Stating on two occasions to the jury, in one form or another, that defendant David Sprouse, the driver of the truck, "killed" the plaintiff;
. . .
c. Violating a pre-trial ruling from this Court by exclaiming in the jury's presence that the Defendants had asserted that Lester was contributorily negligent in causing his wife's death; . . .
d. Repeatedly invoking the name of God or religion by referring to the Plaintiff as one who attends church with his parents and by four times mentioning prayer. . . .
93. Significantly, with the exception of~ 92 c., above, at no time did defense counsel object to any of the above-described behavior

. . . .

Both Lester and Murray must be held accountable for the spoliation. Lester did what Murray told him to do, deliberately delete Facebook photos that were responsive to a pending discovery request. Defendants are entitled to sanctions against Murray and Lester for the spoliation that occurred on May 11,2009, as previously ordered.

. . . .

Contributing substantially to the jury's excessive verdict was Murray's actions geared toward inflaming the jury. As witnessed by the Court, and detailed in ~ 92 above, Murray, injected passion and prejudice into the trial, shouting objections and breaking into tears when addressing the jury. Most of Murray's actions in this respect were suffered without objections from defense counsel, who focused their defense upon the denial of liability (despite Defendant Sprouse's admission to having pled guilty to manslaughter in connection with the accident, . . . and upon aggressive, but obviously ineffectual, attacks upon Lester's credibility and character. This defense strategy produced the extreme opposite of its desired effect, serving to create additional passion and sympathy for Lester and anger towards the Defendants.

As a result, the trial court remitted $4,127,000 of the $6,227,000 awarded to the decedent's husband as beneficiary, leaving him with an award of $2,100,000, adjusted for interest, as beneficiary of his wife's estate.  The husband had also recevied a verdict for his own personal injuuries of $2,350,000, and the trial court stated that his award will stand without modification.   Thus, even after the remittur, the husband's total recovery was $4,450,000.   An award of $1,000,000 to the parents of the decedent was also not disturbed.

The trial court will hold another hearing as to the amount of sanctions to be assessed against the husband and his attorney, and stated that it will refer certain matters to the Virginia State Bar.

All in all, even after the remittitur, this was still a huge plaintiffs' verdict in Virginia.

 

 

 


How Nobel Prize-winning economist Joseph Stiglitz was precluded from testifying as his own damages expert

I previously noted the legal malpractice claim that Joseph Stiglitz, the famous economist, brought in D.C. against his divorce lawyer.  The outcome of the trial was covered by the Legal Times, among others.

That trial was a good case study of how to hamstring a professional plaintiff from testifying as an expert on his own behalf.  Here, the defense, represented by Richard A. Simpson, Esq., was able to obtain a ruling that Joseph Stiglitz, a nobel prize winning economist, could not testify on his own behalf concerning his own damages, where his damages were among other things his own stream of royalty income and the value of his own time.  This turned out not to matter so much, as the jury verdict for the defendant on liability meant that the jury never even had to reach the damages issues. 

In his expert witness disclosures, Stiglitz included himself among his designated experts, albeit without much specificity.  Rather, his counsel simply incorporated Stiglitz's deposition testimony and discovery responses.  However, the expert witness disclosures were vulnerable to attack.

First, the defense moved to strike the testimony of Stiglitz's retained damages expert, Michael Cragg.  The main line of argument was that Cragg's Rule 26(a)(2) report was not submitted until a week before the close of discovery, and more than a year after the deadline for such reports. Cragg's untimely report included a discussion of the value of Stiglitz's lost time and the value of his book royalties, among other things.  The Court granted the motion to strike Cragg as an expert on January 7, 2008.  (In hindsight, given that the trial ultimately took place more than two years later, this ruling seems a bit harsh.)

Subsequently, the defense moved to strike Stiglitz as his own damages expert, arguing that the plaintiff would be attempting to circumvent the Court's prior order if he were allowed to testify as his own expert on the very elements of damages that Cragg would have covered, and that in any event, Stiglitz was not qualified to be an expert on the specific damages issues to be considered by the jury, such as royalties.  

The Court on August 25, 2010, entered a minute order granting the defense motion in limine to preclude Stiglitz's purported damages evidence.