It's natural for liability discussions to focus on the substance of the law: the rules that determine who is liable to whom, based on what conduct, for what measure of damages. Yet as practicing lawyers know well, case outcomes often depend at least as much on the vagaries of civil procedure as on legal substance. When procedures invite abuse, even the wisest substantive law may offer no surety against mischief. . . .  Continue reading...

February 05, 2008

A milestone in curbing discovery abuse?

Last month, to quote the summary, "U.S. Magistrate Judge Barbara Major sanctioned five attorneys from Day Casebeer Madrid & Batchelder and one from Heller Ehrman for their roles in 'monumental' discovery violations in a patent infringement case between Qualcomm Inc. and Broadcom Corp." David McGowan at Legal Ethics Forum sums up the ruling (PDF) here and here, and both John Steele and the NLJ's Solovy & Byman predict that it foreshadows a more serious crackdown on discovery abuse in federal litigation. More links here.

Posted by Walter Olson at 12:12 PM | TrackBack (0)

January 22, 2008

"The Problem of Multidistrict Litigation" at Tulane Feb. 15-16

An impressive lineup produced by the Tulane Law Review includes Russ Herman (Vioxx PSC), Judges Carol Higbee and Eldon Fallon (Vioxx), and Judge Janis Jack (silicosis). Other impressive figures speaking include, but are not limited to, Judge Lee Rosenthal, the indicted Dickie Scruggs, and law bloggers Alexandra Lahav and Mark Herrmann. (via Scheuerman)

Posted by Ted Frank at 09:53 AM | TrackBack (0)

December 17, 2007

Arbitration discussion at Overlawyered

A number of lengthy posts in the last week at Overlawyered on the litigation lobby's campaign against arbitration:

Posted by Ted Frank at 11:23 AM | TrackBack (0)

Bipartisan legal reform bill in the Senate

Federal legal reform is still conceivable in a Democratic Congress, so long as it doesn't directly touch the pockets of the trial bar. One of the greatest expenses in litigation is document discovery, especially in an age of e-mail. It's not simply a matter of photocopying file cabinets: there is something called attorney-client privilege, and if a privileged document is produced to the opposing side, it can argue that the privilege has been waived, and it is entitled to all of the privileged documents. Because of the huge consequences of a mistake in production, parties must expend huge resources on attorneys reviewing documents to ensure that the privileged documents are withheld. Some courts have ordered the return of inadvertently produced privileged documents (and some state bars have even held it unethical to fail to return inadvertently produced privileged documents), but there is no consistency in this, so the incentive is to overspend on defensive lawyering. The increased cost of discovery means that a complaint that gets to the discovery stage has a greater chance of forcing an extortionate settlement, even if illegitimate.

S. 2450, introduced by Sens. Leahy and Specter, would implement a new Federal Rule 502, establishing a presumption for the return of inadvertently produced privileged documents. The effect on litigation expense will be small, but material, to the benefit of everyone except attorneys, though the impact may be overwhelmed by recent developments in the federal law of privilege recognition.

Update, Dec. 18: And an example of the problem at Drug and Device Law Blog.

Posted by Ted Frank at 10:40 AM | TrackBack (0)

December 07, 2007

Judge Weinstein and the "related case" rule III

Following up on my earlier post and Walter's note on Byron Stier's personal experience, let me add my own war story, complete with PACER citations to briefs I wrote nine and a half years ago.

Continue reading   Judge Weinstein and the "related case" rule III

Posted by Ted Frank at 06:10 PM | TrackBack (0)

Judge Weinstein and the "related case" rule

Byron Stier has some comments from personal experience. Earlier here.

Posted by Walter Olson at 10:57 AM | TrackBack (0)

December 03, 2007

Shopping for Judge Weinstein?

A lengthy story by Joseph Goldstein in today's New York Sun (via WSJ Law Blog) explores how plaintiffs' attorneys in gun and tobacco cases have used the related-case doctrine to judge-shop for Judge Weinstein, a phenomenon I noted in my March Liability Outlook.

Posted by Ted Frank at 02:06 PM | TrackBack (0)

December 02, 2007

"An unbounded scale, but no modulus"

Eliezer Yudkowsky at Overcoming Bias compares the nature of certain jury deliberations with the task of observers instructed to estimate the loudness of certain sounds without being given a reference sound ("modulus") with which to compare them: "A jury award for punitive damages isn't so much an economic valuation as an attitude expression -- a psychophysical measure of outrage, expressed on an unbounded scale with no standard modulus." (via Haspel).

Posted by Walter Olson at 12:02 AM | TrackBack (0)

November 27, 2007

Fifth Circuit ruling might curb East Texas venue

Since we've had numerous occasions to note plaintiff's lawyers' propensity to forum-shop product liability (as well as intellectual property) cases into the courts of Marshall, Texas, it's only fair to point out that a recent opinion by a Fifth Circuit panel may slow that trend. Texas Lawyer has details of the Oct. 25 mandamus opinion In Re: Volkswagen of America Inc., in which the panel ruled that U.S. District Judge T. John Ward abused his discretion by not granting a motion by Volkswagen to transfer venue to another district in the suit, which arose from an accident in Dallas, but was filed in the Eastern District of Texas, 150 miles away. More on Marshall and auto suits here, here, etc.

Posted by Walter Olson at 12:05 AM | TrackBack (0)

October 22, 2007

Med-mal at the Texas Supreme Court

Texas's landmark liability reform law, H.B. 4, seems on its face to require a signed expert report before med-mal litigation can proceed -- or do trial lawyers have a right to take depositions first from medical personnel in hopes of developing enough for an expert to sign off on? Backers of the reform fear, and some trial lawyers hope, that the question could blow a great big hole in the much-discussed law. The National Law Journal, which has the story, quotes defendants' lawyer R. Brent Cooper, a partner in Dallas' Cooper & Scully: "If you allow the process that the Tyler Court of Appeals allowed, virtually all of the safeguards on discovery that were imposed by H.B. 4 could be bypassed".

Posted by Walter Olson at 12:14 AM | TrackBack (0)