All lawyers have had the experience at one time or another of being subjected to abusive discovery tactics during deposition. Although the rules of professional conduct are clear, New York state court judges only infrequently grant meaningful sanctions when this behavior is brought to their attention. As a result, lawyers who engage in sharp practice during deposition discovery may calculate that the likelihood of being sanctioned is low. Until the courts demonstrate a willingness to consistently take a firm stance on abusive discovery tactics, sharp-elbowed lawyers will continue to convince themselves that abusive conduct against an adversary lawyer or adversary … Continue reading →

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 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 →

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 →

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 →