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Decrease in numbers of civil jury trials in D.C.

DRI has published an article summarizing a Florida report concerning the decline in jury trials, and the ramifications of that decline.  Based on an analysis of statistics done in 2004, "in 1962, 11.5% of 50,320 civil federal court dispositions were by trial.  In 2002, there were only 1.8% dispositions by trial, out of 258,876."  The negative effects of this decline are at least two-fold: ordinary citizens play less of a role in government, and jury trial experience is harder to come by for lawyers.  A panel of the Florida bar expressed concern that the decline in citizen jury experience could cause a deline in confidence in the court system.

A quick look at the statistics of the D.C. Superior Court confirms this trend.  The D.C. Superior Court' Civil Division reported the following numbers of judgments from jury trials between 1999 and 2010:

Year    Number of civil jury judgments

1999        299

2000        269

2001        228

2002        219

2003        165

2004        164

2005        131

2006        217

2007        214

2008        118

2009        106 

2010        115

There has been a similar decline in Virginia, as has been noted elsewhere.  Numerous federal judges have commented on the trend.

The reasons for this decline include costs and a poor economy of course, but also better and more active management of dockets by the courts.   That development has been mirrored, at least on the defense side, by skillful management of litigation by insurers and business litigants. 

Cybersecurity risks of dating services

The Electronic Frontier Foundation has posted about the "Six Heartbreaking Truths About Online Dating Privacy."   It's the usual story:  once you load information about yourself in some online database, you lose control over it, no matter what they say.  (Hat tip to Be Spacific for the link.) 

If you think about it, it scarcely makes a difference whether the dating service is online or not.  A brick and mortar dating service will have a networked computer database too; that's usually the whole point of the business.  If they have internet access, that database is a rich target for cyber-criminals to hack.

"Come on . . . come on . . . I have not tasted blood in a long time."

In this case a security guard allegedly had repeatedly confronted an African-American and Muslim family in a shopping mall, ordering the mother to remove her traditional Muslim headgear or be forcefully removed.  In the second confrontation, the security guard allegedly pulled a knife while violently yelling, among other things, "Come on . . . come on . . . I have not tasted blood in a long time."  (The security guard eventually plead guilty to criminal charges of second degree assault and assault with a dangerous weapon.) 

Woods v. AlliedBarton Security Services, LLC, No. 11-2831 (D. Maryland Feb. 9, 2012)(unpublished) is a suit by the terrified family against the security guard, his employer, and the firm that hired them, that started off in the Circuit Court for Baltimore City.  After the action was pending for many months and the plaintiffs failed to serve the security guard, the Circuit Court dismissed the security guard as a defendant "without prejudice." 

At that point, the remaining two defendants seized their opportunity, and removed the case to federal court based on diversity jurisdiction.  By doing so, the remaining defendants would be able to try the case while pointing at an "empty chair" as the truly culpable party, and would also be able to subject the plaintiffs' damages experts to the rigors of a Daubert challenge.

The first thing that the plaintiffs did after removal was to serve the security guard with the Circuit Court summons, and then move to remand the case to State court.  The District Court denied that motion, on the grounds that such service was ineffective because the prior removal had deprived the Circuit Court of jurisdiction to re-issue the summons.

Next, the plaintiffs then moved for leave to file an amended complaint to rejoin the security guard as a party defendant.  The two other defendants opposed that motion, which gave U.S. District Judge Catherine C. Blake the occasion to review the relevant factors that a federal court will consider in deciding under Section 1447(e) whether to deny joinder, or permit joinder which destroys diversity jurisdiction and remand the action to State court.  The Court pointed out that the statute "does not allow a district court to retain jurisdiction once it permits a nondiverse defendant to be jointed in the case."

To make this discretionary decision, the District Court considers four factors: (1) the extent to which the purpose of the amendment is to defeat federal jurisdiction; (2) whether the plaintiff has been dilatory in asking for amendment; (3) whether the plaintiff will be significant injured if amendment is not allowed; and (4) any other factors bearing on the equities.  The District Court will also consider the danger of parallel suits in state and federal courts, resulting inconsistent results and judicial inefficiency, and the defendant's interest in a federal forum. 

In this analysis, courts take into consideration the strength of the substantive claim against the party to be joined.  If it is a weak or frivolous claim, then a court may infer the impermissible purpose of forum shopping.

In this case the claim against the security guard was strong, and in fact was the central claim of the case.

Further, the plaintiffs' actions in State court demonstrated that they had been interested in suing the security guard long before the case was removed to federal court and removal or remand was at issue.  The other defendants had been on notice from the outset that the suit could properly be heard in State court. 

The District Court noted that the most plausible inference is that the Circuit Court's dismissal of the security guard "without prejudice" lulled plaintiffs' counsel into believing he had time to rectify the situation before trial.  "In such a situation, the proper action is the one taken here -- for the plaintiffs to immediately notify this court of the mistake and to attemnpt to rejoin the defendant before taking unnecessary and duplicative measures in federal court."

The District Court concluded that the plaintiffs should be allowed to amend their complaint, that his joinder destroys complete diversity among the parties, and that the case must be remanded to the Circuit Court for Baltimore City.

This case is a good illustration of the counter-moves that a plaintiff can make when the defendants in a State court proceeding remove a case under diversity jurisdiction prior to service of the non-diverse defendant, and the analysis that the District Court will undertake. 



The dark side of alternative fee agreements

Alternative fee agreements have received a lot of favorable press in recent years, with the praise usually coming in tandem with criticism of the billable hour.

However, there is a dark side to alternative fee agreements.  Because a law firm's obligations to its clients extend beyond mere contractual duties, the law firm which undertakes matters under an alternative fee agreement can be exposed to wildly disproportionate risks. 

Some of these risks are illustrated by the recent decision in Cunningham & Associates v. ARAG, LLC, No. 11-1983 (D.D.C. Jan. 31, 2012), in which a law firm brought suit against an insurance company providing pre-paid legal services. As recounted by the District Court, the law firm alleged that under its agreement with ARAG, it undertook the legal representation of four of the defendants' insureds in four different matters which collectively demanded over 900 hours of attorney time, but for which the defendants allegedly only paid $2,300.00 to date.  The defendants then terminated their contract with the plaintiff law firm, which termination was in the law firm's view due to defendants refusal to reimburse the firm for reasonable fees and expenses incurred.

The law firm recently filed suit against the defendants, alleging fraud, negligent misrepresentation, breach of the implied contractual duty of good faith and fair dealing, quantum meruit, unjust enrichment, and violations of the D.C. Consumer Protection Act.  In its complaint, the law firm sought damages of $140,715.00 in compensatory damages plus interests and costs, $422,145.00 in compensatory and treble damages under the consumer protection statute, attorney's fees, and $500,000 in punitive damages.  The attachments to the complaint included the ARAG Attorney Network Application, the ARAG Attorney Agreement, and the ARAG North America, Inc. Attorney Reimbursement Fee Schedule (which are all available through PACER for anyone interested).

In its opinion, the District Court granted the defendants' motion to compel mediation, and stayed the action for 45 days so that mediation could take place.  The contract between the parties required four hours of non-binding mediation in Des Moines, Iowa.


Professional reading - some notable blog posts

Here are some notable blog posts from my professional reading:

From the K&L Gates Electronic Discovery blog, there is a discussion of a D.C. Court of Appeals Committee on the Unauthorized Practice of Law Opinion addressing "Discovery Services Companies."

Surprisingly, it is not "anything goes" in the District.

A Houston partner in Vorys, Sater gives major love to a 1st Circuit Daubert opinion in The Sentry That Guards Against the Tyranny of Experts

Be glad when you are in federal court and can rely on Daubert.

The Advocate's Studio has a post on How to Subpoena Social Media.

But that applies mainly to criminal investigators.  Let me guess how it is for civil litigants:  Facebook, which does business not only in every State and every County, but does business in everyone's darn house, has decreed that it can only be subpoenaed with a California subpoena, and even then, only when a totally unreasonable fee is paid.  Plus they'll drag their feet for a couple months.  That about it?  Looks like it.

Negligence per se based on traffic regulations: A D.C. refresher.

Apart from the legal issue, what I found interesting is that in one of the cases discussed, Mahnke v. WMATA, a pedestrian was hit by a bus in a crosswalk when the pedestrian had a "Walk" signal, and WMATA still defended on liability based on contributory negligence.  This was possible in part because by chance, there was an available videotape of the accident, which in WMATA's view, showed that the plaintiff did not look for oncoming traffic before stepping off the curb.  This illustrates how CCTV video is affecting litigation.  I don't know about anyone else, but I frequently see people march off the curb into a crosswalk without looking when they get a  "Walk" sign.  And frequently, they do so talking on a cell phone.

In fact, physicians at the University of Maryland have recently published a study concerning Headphone Use and Pedestrian Injury in the United States:  2004-2011.  Hat tip to Aaron Kase's blog post, Distracted Walking Injuries on the Rise, which was published on the blog (link no longer available).  I am seeing that every day now: pedestrians riding escalators while reading their smart phones or kindles, pedestrians crossing busy intersections while talking on their cell phones, and so on.  It's a standard question in pedestrian injury depositions to ask the claimant what he or she was carrying at the time; now, there should also be specific questions about any electronic devices they were using at the time.