The Corrupting Impact of Plaintiff Litigation Advertising

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Plaintiff litigation advertising is cynical recruitment tool to enlist potential plaintiffs in mass tort litigation. Litigation advertising furthers three primary objectives (1) enlisting potential plaintiffs in mass tort litigation (2) damaging the reputation of corporate defendants and (3) increasingly the likelihood that corporate defendants do not obtain fair trials in cases in which the advertisers have a financial stake. The most pernicious objective is the contamination of the prospective jury pool on the eve of trial. According to Rustin Silverstein, the President of X-Ante, over $1,000,000,000 is spent each year on litigation advertising at a remarkable burn rate of 27 … Continue reading →

Why Anchoring Is Effective In Generating Excessive Jury Verdicts

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Summation anchoring, requesting that the jury award an unjustifiably high nonecomomic damage award, is a highly effective tactic used by plaintiffs’ counsel. This is particularly the case when sympathetic jurors lack objective means for determining compensation for pain an suffering. Studies have shown that the “more you ask for, the more you get.” Anchoring provides an arbitrary, but psychologically powerful, baseline for jurors who may be struggling with assigning a monetary value to pain and suffering. Mark a. Behrens, Cary Silverman & Christopher E. Appel at Shook Hardy & Bacon have authored a terrific article about this pernicious practice titled … Continue reading →

New York’s High Court Expands Definition of Family

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In Greene v. Esplanade Ventures Partnership, 2021 N.Y. LEXIS 104, the New York State Court of Appeals considered whether plaintiff-grandparent Susan Frierson, who was in close proximity to her two-year old granddaughter when she was tragically struck and killed by falling debris from the a building with an allegedly defective facade, could pursue a claim for bystander recovery under a “zone of danger” theory. The traditional rule in New York has been that only a member of the immediate family could seek recovery for emotional distress as a result of viewing the death or serious physical injury under those circumstances. … Continue reading →

New York State Court Leads U.S. In Spoliation Of Evidence Risk

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New York is not the most populous state in the U.S. (it’s fourth), but its state courts litigate more spoliation disputes than any other state. In their recent data-driven analysis, Ronald W. Zdrojeski and Kamryn M. Deegan, lawyers at Eversheds Sutherland (US), make several cogent observations that should cause corporate inhouse counsel to perhaps give greater attention in preparing to litigate their matters in New York. Between December 2015 and December 2020, 226 disputes about destruction of evidence were decided in New York state courts of which 215 were decided by the Supreme Court and 11 by the Court of … Continue reading →

How Amended Federal Rule 30(b)(6) Will Change Your Practice

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With little fanfare, an amendment to Rule 30(b)(6) of the Federal Rules of Civil Procedure went into effect on December 1, 2020. It is critical that federal practitioners appreciate how the nuances of the amended Rule 30(b)(6) will affect deposition planning strategy in the coming year and beyond. The rule now requires that, “[b]efore or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.” The amended rule attempts to remedy existing entity designee deposition practice, which far too often involves the use of overly broad … Continue reading →

Remote Deposition Witness Preparation: Best Practices

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Covid-19 has ushered in the era of the remote deposition. Preparing a client to be an effective witness in a remote deposition setting creates unique challenges. This article will discuss some of the concerns that often arise in that deposition preparation process. Many of the ideas expressed here are discussed in a recent article titled, “Maximizing Witness Effectiveness in a Remote Deposition”, by Ann T Greeley, Ph.D, a psychologist and trial consultant at DecisionQuest. It occurred to me reading her article that although I have competently prepared witnesses for deposition for decades, remote deposition preparation may require some fine-turning of … Continue reading →

Defending Remote Corporate Depositions in the Covid-19 Era

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This article will discuss best practices for defendant’s counsel to follow in representing a corporate client remotely (e.g., via Zoom, GoToMeeting, or WebEx). Increasingly, it is the expectation of courts, both state and federal, that deposition discovery will continue during the pandemic. How can you, as the defense lawyer, fulfill your primary duty of providing effective counsel to the client when the prep is conducted long distance and you will not be able to be in the same room as your client during the deposition? In a document-intensive deposition, how can you ensure that the client is fully capable of … Continue reading →

Infringing Unicorns and Knock-off Elves in the Covid-19 Public Emergency

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There are few light moments during a pandemic, but the Order of the Hon. Steven Seeger, a federal district court judge in Chicago sitting in the United States District Court for the Northern District of Illinois, Eastern Division, issued on March 18, 2020, in an infringement case brought by Art Ask Agency, is scathing. The Order is a biting commentary, penned with deadpan sarcasm, about litigants, such as the plaintiff here, who were clearly oblivious to a “fast-developing public health emergency” in repeatedly demanding that the federal district court hold a hearing to enjoin the sale of “infringing unicorns and … Continue reading →

NY Appeals Court Shifts Goal Posts For Environmental Class Actions

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The decision of the Appellate Division, Third Department, in Burdick v. Tonoga, Inc., decided November 21, 2019, affirms the trial court’s decision certifying four classes, including a medical monitoring class, arising from claims of property damage and personal injury allegedly resulting from PFOA exposure. The decision potentially expands significantly class action plaintiffs’ use of CPLR 901 and CPLR 902, New York’s rules governing class certification, in environmental tort actions. Although the members of the medical monitoring class do not claim to suffer presently from any demonstrated PFOA-related physical injury, the appellate court nonetheless determined that certification of a medical monitoring … Continue reading →

WATER: Is it a Public Trust Resource? Private Resource? Or Both?

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co-authored by Devon Bombassei What is the Public Trust Doctrine? Is it a concept that can be wielded like a sword to bring environmental miscreants to their knees in a courtroom? Or is it a shield to protect the citizenry against overzealous private interests that would seek to use this precious natural resource for profit and corporate gain? As the debate over the use of water intensifies, the water industry–comprised of regional, municipal and private companies–is unsure whether the formal adoption of the Public Trust Doctrine by states and municipal entities may undermine long accepted business models and place constraints … Continue reading →